' NISAR MUHAMMAD SHAIKH, J.---Applicant Ghulam Hussain seeks bail in connection with Crime No.2 of 2012 of Police Station Excise Circle, Kotri under section 9(c), C.N.S. Act, 1997 after his similar prayer was declined vide order dated 3-12-2012 passed by learned Sessions Judge/Special Judge (N), Jamshoro alias Kotri.
2. As per the F.I.R. Lodged by complainant Syed Aijaz Ali Shah, Incharge Excise Circle, Kotri on 8-11- 2012 at 10-40 p.m., on receiving spy information the complainant alongwith his subordinates left Police Station Excise Circle, Kotri vide Roznamcha Entry No.2395 at 5-30 p.m. In a private vehicle and reached at Sehwan Bus Stand at about 7.30 p.m. Where they saw the pointed out person standing there. He was apprehended and on his personal search two packets of charas wrapped in plastic, were recovered from his possession. These packets were opened, there were two 'pattis'
(slabs) of the charas in each packet. The recovered charas was weighed and each packet was found containing one kilogram of charas and thus the total was the two kilograms of charas. From each packet, 10 grams of charas was separated as sample for chemical examination and the same was sealed separately, while the other quantity of charas was sealed separately.
3. Learned counsel for the applicant, relying upon a famous case of Ghulam Murtaza and another v. State reported as PLD 2009 Lahore-362 contended that such authority deals with the quantum of punishment to be awarded on recovery of different quantities of various type of contraband narcotic substances like charas, heroin etc. He submits that the normal and standard sentences on recovery of different quantities of various contraband narcotic substances are prescribed in detail in such judgment which is also approved and upheld by the honourable Supreme Court of Pakistan. He refers to its relevant page-373, wherein the imprisonment on recovery of charas exceeding one kilogram and upto 2 kilograms, has been provided as four years and six months' R.I.
With fine of Rs.20,000 or in its default, S.I. For 5 months. He submits that since this normal sentence provided for recovery of 2 kilograms of charas, is not covered by prohibitory clause of section 497(1), Cr.P.C., therefore, the applicant is entitled for the concession of bail.
4. He also placed reliance on the cases reported as 2012 MLD 1542, 2011 PCr.LJ 1200, 2012 YLR 2684 and 2011 MLD 1890 contending further that since the alleged recovery of charas was of 2 kilograms, therefore, the same comes within the border line and in similar type of cases of recovery of charas, the bails have been granted to the accused persons as are reported in the above cases. He also contends that though the complainant party had allegedly received prior information and after two hours they arrived at the spot, yet they failed to associate any private person or a witness from the locality, to attest the alleged recovery. He also contends that even otherwise, it is not believable that the applicant who, as per the spy information, was available at Sehwan Bus stand carrying the charas, was found available at the same place with the charas in question and he, during two hours, did not start travelling or going anywhere else. In addition to above, he also submits that the applicant is sole earner of his family and he has been in jail since the date of his arrest effected on 8-11-2012, therefore, he has suffered a sufficient time in jail, in which he cannot be detained for an indefinite period. Apart from this, he also placed on record the copies of the F.I.Rs. And other documents, annexed with this bail application, showing the previous enmity of the police with applicant party.
5. On the other hand, learned Addl. P.G. Opposed the grant of bail contending that the recovery of a huge quantity of 2 kilograms of charas is against the society and as per section 25 of C.N.S. Act, no private witness of the locality is required to be associated with police and under section 29 of the said Act the burden was shifted upon the applicant to disprove his possession in respect of the charas, therefore, the cases as cited by the learned counsel for the applicant are distinguishable and there is sufficient evidence collected by the police, which prima facie connects the applicant with the alleged crime. In addition to above, he also contended that no doubt, in the famous case of GHULAM MURTAZA (Supra), the full bench of Lahore High Court has formulated a chart prescribing the normal sentence on recovery of respective contraband narcotic substances like charas, heroin etc. Irrespective of the fact that the relevant provisions of C.N.S. Act, 1997 provide same punishment for the recovery of charas or heroin of a particular quantity but, according to him, such judgment does not provide the different quantum of punishment on recovery of contraband narcotic substances area-wise as, in our country, usually the recovery of a charas is normally of a huge quantity spreading to mounds in Khyber Pakhtunkhwa Province where such crops are cultivated and factories are functioning for such production purpose, but the same are lacking in this Province and, therefore, the recovery of the charas of about 2/3 kilograms may not be so serious in the areas of Khyber Pakhtunkhwa Province, but the recovery of 2 kilograms in Province of Sindh is not so minor to be ignored saying that it is in borderline. He, therefore, submits that some law needs to be set down on this material aspect of the case in these peculiar areas of the country in which no such difference is made insofar as the recovery of contraband narcotic substance is concerned.
6. Apart from above, he also pointed out that almost in all narcotic cases the charas in trucks etc., is usually found to have been brought from Khyber Pakhtunkhwa Province particularly from Peshawar to Sindh Province specially Karachi, but apparently there is no case with allegation that the charas etc. Was found while taking from Karachi or Sindh Province to outside. In support of his contention, he also placed his further reliance on para-10 of the same judgment given in GHULAM MURTAZA's case, which is reproduced below:- "W. It goes without saying that in a particular case carrying some special features relevant to the matter of sentence a court may depart from the norms and standards prescribed above, but in all such cases the Court concerned shall be obliged to record its reasons for such departure."
7. I have considered the above submissions and perused the relevant law and also gone through the case-law, as relied upon by the parties. But, I find that all the points, raised by the parties are not necessarily required to be discussed and determined here as the deeper appreciation is not required at this stage. However, it is admitted in the very F.I.R. Itself that total 4 `pattis' (slabs) weighing total 2 kilograms of charas lying in two packets, were allegedly recovered from the present applicant, but only 10 grams each, from 2 packets only, were separated as sample for chemical examination leaving the remaining two 'pattis' in the packets, therefore, the positive report received in respect of two samples which apparently were taken out from two 'pattis', could not be deemed at this stage to have its connection with the alleged recovery of all the 4 'paths' and therefore, for the remaining two 'pattis' from which no sample was apparently separated or sent for chemical examination, it is left for the learned trial Court to determine the same and accordingly, to this extent at least, the case needs further inquiry.
8. However, since the recovery of said two 'pattis', the weight of which seems to be one kilogram, is covered by section 9(b), C.N.S. Act, 1997, which is not falling within the ambit of prohibitory clause of section 497(1), Cr.P.C., therefore, the applicant who is in jail since 8-11-2012, seems to be entitled for the concession of bail. Accordingly, he is granted bail subject to his furnishing solvent surety in the sum of Rs.100,000 (Rupees one lac) and PR bond in the like amount, to the satisfaction of learned trial Court.