' AZIZ-UR-REHMAN, J.---By means of this bail application under section 51 of C.N.S. Act, 1997 [Act XXV of 1997] read with section 497, Cr.P.C, the applicant/accused Muneer son of Mir Khan seeks his release on bail in Crime No,02 of 2012 under section 9(c) of Control of Narcotics Substance Act, 1997, [Act XXV of 1997].
2. Fact of the prosecution case as setup in the F.I.R. No,02/12 reads as follows:-- "It is to complain on behalf of the State that today, 1 along with staff each HC/1004 Moula Bux, HC- 990 Habibullah Ali Jono, PC-1673 Manzoor Hussain Channa and driver PC-95 Ali Gul, in police uniform with official arms and ammunition left police station in official Vehicle No, SP-6673, vide daily diary entry No,09 dated 1-1-2012 at 1430 hours for patrolling in the area. After patrolling at various places, when reached at Kazi Ahmed diversion, where received spy information that one person is selling charas and alcohol at Asif Colony. We along with staff left for pointed place by the spy and at 1545 hours reached at common street, Asif colony, Kazi Ahmed and saw that one person was sitting in the street and a plastic bag was lying in front of him, who on seeing our police vehicle, started running away with plastic bag. We stopped the vehicle, alighted from vehicle along with staff encircled with strategy and apprehended him with plastic bag, where arranged for private mushirs but due to non-availability of private mushirs, HC-1004 Moula Bux and PC-1171 Munawar All were made mushirs and inquired from his name etc. From apprehended person, who disclosed his name Muneer S/o Mir Khan by caste Khaskheli r/o Asif Colony, Kazi Ahmed. His personal search was conducted and from his personal search nothing was recovered.
Shopping bag was taken into police custody, checked and found red colour five pints of alcohol Wat-1 and white colour 8 pints of alcohol London Dry Gin (Whisky) and three big packets of charas. On weighing charas on spot, found each packet of one K.G. Total three KGs. / 200 grams from each packet was separated for chemical examination and sealed as sample, while remaining charas sealed separately. From recovered alcohol, one pint of red colour Wat-I and one pint of white colour London Dry. Gin were sealed separately for chemical examination, while remaining pints of alcohol/whisky were sealed separately in plastic bag. From him, inquired about chqras and alcohol he disclosed that it is mine and I use to sell. As Muneer son of Mir Khan Khaskheli, by keeping illegal charas and alcohol in his custody for selling, committed offence under section 9-C, CNS and 3/4 Prohibition (Enforcement of Hudood) Order, hence he was arrested with preparing of mushirnama. Then arrested accused Muneer Khkaskheli and charas and alcohol recovered from him brought at police station in custody and on behalf of State case under section 9-C CNS and 3/4 Prohibition (Enforcement of Hudood) Order is registered."
3. The case after usual investigation of police has been challaned and the accused/applicant thus is facing the trial in Court of law for his alleged guilt.
4. The applicant/accused before approaching this court through the instant Bail Application No,S- 400 of 2012, earlier had moved Bail Application No, 121 of 2012 under section 497, Cr.P.C. Bearing No,121 of 2012 [Muneer son of Mir Khan v. The State] for grant of post arrest bail in the Court of Sessions Judge/Special Judge, C.N.S., Shaheed Benazirabad. The same however, was dismissed vide order dated 17-2-2012.
5. Mr. Ahsan Gul Dahri, learned counsel for the applicant/accused vehemently argued that the applicant/accused, in fact is a political worker and has thus become victim of political victimization. Per learned counsel the case property in actual fact has been foisted upon the applicant/accused by the police officials.
6. Mr. Ahsan Gul Dahri learned counsel for the accused forcefully contended that in fact nothing has been recovered from the possession of the applicant/accused. Per learned counsel the applicant is absolutely innocent and has been falsely implicated in the case in hand, of course, with ulterior motives and mala fide intention.
7. Mr. Ahsan Gul Dahri the learned counsel for the applicant next contended that SIP Eiden Khan Siyal, S.H.O. Police Station Kazi Ahmed besides inscriber of F.I.R. Is also investigator of the crime. Not only this both the 'mushirs' are subordinate of the complainant. False implication of the present applicant/accused under circumstances of the case, thus cannot be ruled out. Mr. Ahsan Gul Dahri, learned counsel for the applicant/accused further submitted that out of the alleged three packets of charas only 600 grams [200 grams from each packet] was sent for chemical examination and that too with a delay of five days. The remaining recovered property was not sent for chemical examination as such the quality and/or quantity of the alleged charas cannot be ascertained truly.
8. Per learned counsel, in view of such illegalities, it cannot be ascertained and /or confirmed that the remaining quantity was also charas. The case against the accused even if, proved in regular trial, it would be for 600 grams of charas only, which in any event does not fall within the ambit of section 9-C of C.N.S. Act, 1997 [Act XXV of 1997].
9. Mr. Ahsan Gul Dahri, learned counsel for the applicant/accused while, elaborating his arguments further urged that the complainant viz SIP Eidan Khan Siyal S.H.O. Police Station, Kazi. Ahmed has allegedly got information at Kazi Ahmed diversion about the selling of the 'charas' and 'alcohol' and that too in a common public street Asif Colony at 1545 hours but no cash/exchange whatsoever was recovered in personal search of the applicant/accused. No recovery of any cash/exchange, indeed, is a prima facie proof of innocence of the applicant/accused.
10. The story narrated and setup in the F.I.R. Besides, extremely doubtful is also un-believable. The allegations levelled in the F.I.R. No,02 of 2012 against the applicant/accused are ill motivated, shaky and baseless thus needs detailed probe. Per learned counsel, no private person was found available at the place of incident [i,e, Asif Colony], though it was admittedly a common street. The spy information as alleged, was also available with the police raiding party, but notwithstanding such information, no independent person of the local area was called upon to act as 'mushir' or 'witness' of the arrest and alleged recovery. Per learned counsel, it is a clear violation of the provisions of section 103, Cr.P.C. Be that as it may inter act, such violation renders the case of the applicant doubtful and of further inquiry. Mr. Ahsan Gul.Dahri, also contended that the applicant/accused is not a habitual offender, as before the case in hand, there is not a single complaint against him vis-a-vis selling of 'charas' and/or 'alcohol'.
11. Bail, per learned counsel, is not to be withheld as a punishment as the ultimate conviction and incarceration of a guilty person, of course, can repair the wrong if, caused by mistaken relief of bail.
12. Per learned counsel, the applicant/accused under circumstances of the case is, indeed, entitled for grant of bail. The case of the applicant/accused besides 'doubtful' is a 'case of further inquiry'.
The applicant/accused, per Mr. Dahri, is neither a criminal nor otherwise, has any previous record of conviction. The accused/applicant nonetheless is entitled for the benefit of doubt.
13. Since, last 22 months the applicant/accused is behind the bar for no fault and/or on account of any conviction. If, the accused is kept behind the bars onward as well then, surely besides, humiliation he will suffer continuous torture. Not only this he will also lose his 'liberty' and 'reputation'. The applicant/accused, is in jail for a period of more than 22 months and admittedly he is no more required for investigation or otherwise. Mr. Ahsan Gul Dahri, learned counsel for the applicant/ accused, lastly contended that the normal and standard sentence for the alleged Contraband Narcotics Substances [03 KG. Charas] allegedly recovered is R.I. For five years, six months and fine of Rs,25,000. In default, the accused to suffer S.I. For five months and fifteen days more. The charges against the accused thus do not fall much less within the ambit of prohibitory clause of section 497 Cr.P.C.
14. Learned counsel for the applicant in support of his contention placed reliance on the following cases:--
(a) DILDAR ALI, P.C. v. THE STATE [2009 MLD 133].
(b) TARIQ BASHIR and 5 OTHERS v. THE STATE [PLD 1995 SC-34]
(c) GHULAM MURTAZA and OTHERS v. THE STATE [PLD 2009 Lahore 362].
(d) NAZEER AHMED v. THE STATE [PLD 2009 Karachi 191].
(e) STATE THROUGH ADVOCATE GENERAL, SINDH BASHIR AND OTHERS [PLD 1997 SC 408].
(0 AGHA QAIS v. THE STATE [2009 PCr.LJ (Lahore) 1334].
(g) GHULAM.ABBAS v. THE STATE [2011 YLR 1723].
(h) BAHAWAL ALIAS NAANG v. THE STATE [2011.PCr.LJ 1200].
(i) NASIR KHAN AFRIDI v. THE STATE [2011 YLR 2316].
(j) KHUDA BUX v. THE. STATE [2010 SCMR 1160].
(k) MUHAMMAD FAIZ v. THE STATE [2008 YLR 1214]. (1) IMDAD ALI v. THE STATE [2001 YLR 1848].
15. Conversely, Mr. Shahid Ahmed Shaikh, Asstt. P.G. Emphatically opposed the grant of bail. Learned A.P.G. Contended that huge quantity of 'charas' [i,e, 3 K.G.] has been recovered from possession of the applicant/accused. As such the accused is very much connected with the offence. Per learned A.P.G., the case of the present accused falls within the ambit of section 51 of the Control of the Narcotic Substances Act, 1997 [Act XXV of 1997]. Learned A.P.-G. Further contended that only recovery effected is to be considered at the time of grant of bail and merits of the case muchless in deep, need not to be considered and/or examined. He further contended that direct role in the F.I.R. Has been assigned to the accused. The accused according to the learned A.P.G. Has rightly been refused the concession of bail by trial court. Learned A.P.G. Next contended, that applicant/accused is not entitled for concession of the bail in view of recovery of huge quantity of charas. Any sort of lapses inter alia in investigation were forcefully denied by learned A.P.G. Lastly, learned A.P.G. Prayed for dismissal of the Bail Application.
16. Heard learned counsel for the parties and also gone through the available record.
17. In the present case, SIP Eidan Khan Siyal, S.H.O., Police Station.Kazi Ahmed, besides complainant is also inscriber of the F.I.R. The said officer himself investigated the case against the applicant/ accused and allegedly collected evidence. From the complainant of an F.I.R., indeed, 'impartial investigation' and/or 'preservation of evidence' cannot be expected for the obvious reason that in such eventuality it will go against his own case set-up.
18. A complainant of an F.I.R. [as the case in hand is] cannot suitably discharge his duties as an independent and/or fair investigating officer. For this obvious reason, Superior Courts have never appreciated or approved such practice. Under law, an officer of police or of any other force is always obliged to do justice and conduct. Investigation beyond any doubt, of course, fairly and independently. Otherwise, the investigation made in contravention of para-3 of the Rule 25.2 [Chapter XXV] of Police Rules, 1934 would render the investigation very much doubtful. It is the duty of a police officer who is investigating the crime to discover the truth and actual facts. The investigating officer, it is needless to say, is also an important witness of defence. For achieving such object, the investigating officer in all circumstances shall not be biased. If complainant of crime is also investigating officer then in such eventuality the factor of bias- cannot be ruled out.
Regarding this aspect of the matter reference can be made to the case of THE STATE v. BASH1R THROUGH ADVOCATE GENERAL AND OTHERS [PLD 1997 SC 108]. The relevant observations made therein read as follows:-- "Then reference may be made to the Police Rules, 1934. Chapter XXV of the Police Rules relates to Investigation. Para. 3 of the Rule 25.2 in. Chapter XXV reads as under:- "3. It is the duty of an Investigating Officer to find out the truth of the matter under investigation.
His object shall be to discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person."
' It could hardly be expected that a police officer, who is heading a raiding party and is a witness, also becomes the complainant and lodges an F.I.R. Against the accused, and then becoming an Investigating. Officer of the same case, will comply with the aforesaid Police Rule. In the circumstances, the practice of the seizing officer or the head of a police party who is also a witness to the crime becoming or being nominated as an Investigating Officer of the same case should be avoided and if any other competent officer is available in the police station, he may be nominated as the Investigating Officer rather than the head of the Police Party. As observed, Investigating Officer is an important witness for the defence also and in, case the head of the police party also becomes the Investigating Officer he may not be able to discharge his duties as required of him under the Police Rules." [Underlining is mine].
19. Likewise, in the case of Agha Qais v. The State [2009 PCr.LJ 1334], the Division Bench of Lahore High Court, observed as under:-- "9. Under the law, complainant and accused are two opponent parties. In other words, they are two contesting parties. Role of an Investigating Officer is of a neutral authority whose object is to unearth the truth. The Investigating Officer cannot be a part or a member of a party in a case which he is investigating. In this regard, guidance may be sought from Chapter 25 of Investigation from Police Rules, 1934. Rule 25.2(3) reads as under:- "It is the duty of an Investigating Officer to find out the truth of the matter under investigation. His object shall be to discover the actual facts of the case and to arrest the real offender or offenders.
He shall not commit himself prematurely to any view of the facts for or against any person."
' The language of Rule 25.2 above noted clearly requires of an Investigating Officer not to commit himself prematurely to any view of the facts for or against any person. This cannot be expected from an Investigating Officer who himself is a party. As a matter of fact, concept of honest investigation is based on nonpartisanship and neutrality. The reason and spirit of separating investigation wing from the operation wing of police also emanates from the same fact which reflects in Article 18 of the Police Order, 2002, therefore, we feel that element of honest, transparent and fair investigation lacks in the instant case. The same point has been discussed by the learned Sindh High Court reported in Nazir Ahmad v. The State PLD 2009 Kara 191. The honourable Supreme Court has analyzed the above point from another angle also. According to the honourable Supreme Court, Investigating Officer is an important witness for the defence also and in case he acts as a complainant and raiding officer, the defence is deprived of his very precious right at the same time and is forced not to depend upon the same. The Federal Shariat Court also observed that such an investigation is biased investigation. (Ashiq alias Kaloo v. State 1989 PCr.LJ 601). In State v. Bashir and others PLD 1997 SC 408, the honourable Supreme Court observed that "as observed above, Investigating Officer is as important witness for the defence also and in case' the head of the police party also becomes the Investigating Officer, he may not be able to discharge his duties as required of him under the Police Rules". " [Underlining is mine].
20. As for as the second contention of Mr. Ahsan Gul Dahri, learned counsel for the applicant vis-a- vis non-following of mandatory requirements of section 103 Cr.P.C. Is concerned, it is worth to note, that time anti again, it has been observed by Superior Courts that before making a search, the police officer or other officer making such search, to call upon two or more inhabitance of the locality to attend and witness the search. In the instant case the alleged incident has taken place at 1545 hours on 1-1-2012 in a common street of 'Asif Colony'. But no independent witnesses from the locality were made mushirs of alleged recovery. This, no doubt, is a clear violation of the provisions of section 103 Cr.P.C. [Act V of 1898].
21. The provisions of section 25 of the C.N.S. Act 1997 [Act XXV 1997], indeed, excludes the applicability of section 103 Cr.P.C. [Act V of 1898] such exclusion, however, does not authorize the investigating officer of police or such other officer absolutely to exclude independent witnesses in all circumstances. Reliance is placed on the case of Nazeer Ahmed v. The State [PLD 2009 Karachi 191] wherein the Hon'ble Division Bench of this Court observed as follows:--
6. Under section 25 of the C.N.S. Act, applicability of section 103 of the Code of Criminal Procedure 1898 (Cr. P. C.) has been excluded in making searches and arrests in respect of narcotics. Section 103 Cr.P.C. Enjoins the officer or other person, who wants to make search of a place, to call upon, before making the search, two or more respectable inhabitants of the locality to attend and witness the search. The purpose, according to the unanimous opinion of the superior Courts, is to prevent chicaneries of police.
7. While keeping the provisions of section 103, Cr.P.C., which are undoubtedly salutary, intact for searches in respect of all other things, the legislature considered it expedient to do away . With the requirement of calling upon the respectable persons to attend and witness search in respect of narcotics. Thus, the provisions of section 25 of the C.N.S. Act are a departure from the general law of the land and appear to be out-come of an expediency so as to give a free hand to police and other forces while dealing with cases involving narcotics.
8. By excluding applicability of section 103 of Cr. P. C. In narcotic cases, the legislature has not conferred any additional or extra sanctity upon the officers of police or such other forces. It has not made them more reliable. Indeed, as it has been rightly observed by a Division Bench of this Court, in the case of Ali Hassan v. The State, reported in PLD 2001 Karachi 369, 'man cannot be made moral through legislation'. The effect of section 25 of the C.N.S Act will be that evidence of a police officer regarding recovery of a narcotic substances cannot be discarded only on the ground of non-compliance of section 103, Cr. P. C. In another case, re: Pir Bux v. The State, reported in 2007 MLD 1696 (Karachi), it was observed that notwithstanding the non-applicability of section 103 Cr.P.C. In the cases of narcotics, the officers making searches, recoveries and arrests are required to associate private persons, more particularly in those cases in which their presence is admitted so as to lend credence to such actions and to restore public confidence." [Underlining is mine]
22. Similarly the observations made by my lord Mr. Justice Salem Akhtar of Hon'ble Supreme Court of Pakistan [as he then was] and reproduced at page 422 in the case of State through Advocate General Sindh v. Bashir and others [PLD 1997 SC 408] read as follows:-- "11. It has been contended that evidence of police officer should be accepted like any other prosecution witness. A police officer produced as a witness for the prosecution can be relied upon like other prosecution witnesses but as lie is an investigating officer or attached with the investigation staff, the Courts as a matter of prudence and safe administration of justice, scrutinize the evidence of such witnesses with care and caution. Where circumstances permit, the evidence may be accepted to prove arrest or recovery but in order to make it credible and authentic the prosecution must explain the circumstances for noncompliance with the provisions of section 103. Section 103 read with section 164, Cr.P.C. Lays down the mode for recovery and search but as in certain circumstances a deviation may be made, it would be proper to explain the reasons for such deviation. So far the acceptability of the evidence of the police officer is concerned, the general principle is that if there is no animus or mala fides, the investigation has been straight and honest and no substantial defect or infirmity has been pointed out in the evidence or brought through cross-examination, the evidence of such a witness though a policeman, may be accepted. However, in cases of, recovery, this principle is accepted subject to furnishing an explanation by the prosecution for non-compliance with section 103.
Para. 15 quoted by my learned brother reads as follows: "15. From the aforesaid judgments, it seems clear that being a policeman or an Investigating Officer, is no bar to the acceptance of his testimony. His evidence should be accepted like other prosecution witnesses and if it fulfills all such conditions which are necessary for accepting and believing a witness, it cannot be. Discarded. But where such witness proves recovery, normal limitations and restrictions have to be observed"
' Both the paras. Are to be read together and it has never been observed that where search is made by the police officer without resorting to the provisions of section 103, Cr.P.C., the policeman or the investigating officer would be a competent witness. No doubt their evidence can be assessed as an ordinary witness, but where it relates to search and seizure, it will have to be considered whether provisions of section 103, Cr. P. C. Have been observed. All restrictions and conditions which are preconditions to the admissibility of such police personnel's evidence have been spelt out in para.. 11 quoted above." [Underlining is. Mine].
23. By not fulfilling the mandatory requirements of section 103 Cr.P.C. In the case in hand, the case of the applicant/accused besides doubtful has become a case of further inquiry. Besides, the applicant/ accused has no past criminal history. Neither he was booked, in past, for alleged crime nor convicted' as such. The case of the applicant/accused, under circumstances, is a borderline case, benefit of doubt, therefore, must go to him even at the stage of bail.
24. Significantly, per version of the complainant in the F.I.R. The place of incident is a colony and the applicant/accused was allegedly selling 'charas' and 'alcohol' in common street but no cash and/or exchange whatsoever was recovered from the applicant/accused upon personal search.
Besides, spy Information was available with the raiding police party but not a single independent person of locality came forward to act as a 'mushir' or 'witness' of the alleged incident and/or recovery. All this, indeed, makes the case of the prosecution besides 'doubtful', 'false' and of 'further inquiry'. Reliance in this regard can be placed on the case of Ghulam Abbas v. The State (2011 YLR 1723]. The relevant extract therefrom reads as follows:-- "It is argued by Mr. Nisar Ahmed G. Abro, learned counsel for the applicant, that despite receiving the alleged spy information, the complainant party failed to associate any private witness to attest the alleged recovery of charas and no purchaser of the Charas in question has been cited in the F.I.R. Though the applicant was allegedly selling the charas, therefore, the case of prosecution needs further enquiry.
' On the other hand, Mr. Mus 'ab Baloeegh Dhamrah, learned State Counsel, opposed the above bail application.
' I have considered the above submissions and also perused the relevant papers.
' In addition to the above contentions raised by learned counsel for the applicant, it appears that the F.I.R. Does not show as to how much pieces of the Charas were secured from applicant and how much pieces, out of recovered Charas, were sent for chemical examination. Moreover, the total quantity of alleged Charas being 1100 grams, marginally exceeds to the borderline, falling between the offence under sections 9(b) and 9(c) of C.N.S. Act, 1997."
' In the circumstances, the applicant, who is in jail since after his arrest, is granted bail on furnishing a solvent surety in the sum of Rs,100,000 and PR bond in the like amount to the satisfaction of the learned trial court."
25. Likewise, in the case of Hakim Mumtaz Ahmed v. The State (PLD 2002 SC 590) it was held as follows:- "Despite earlier information respectable persons of the locality were not associated in recovery proceedings carried out against the accused. Allegations against accused, thus, needed further enquiry."
26. Besides in the instant case the alleged incident took place on 1-1-2012 at 1545 hours at Asif Colony at a common street but no cash/exchange whatsoever was recovered from possession of the accused/applicant. Moreover, no independent person despite spy information was made as `mushie or 'witness' of the alleged recovery of charas. Further the alleged recovery was effected on 1-1-2012 but surprisingly the samples sent on 6-1-2012 to the chemical examiner, Chemico- laboratory, Sukkur at Rohri through P.C. Nazimuddin B No,649. Such delay in sending of the samples of alleged charas has not been explained plausibly by the prosecution. The unexplained delay of five days renders the case of the applicant besides doubtful a case of further probe.
27.. On the above aspect of the matter, Mr. Ahsan Gul Dahri learned counsel for the applicant/accused, placed reliance on the case of, Bhawal alias Naang v. The State (2011 PCr.LJ 1200). The relevant observations run as follows:- "It is settled law that at bail stage deeper appreciation of the evidence cannot be gone into but only it is to be seen as to whether the applicant/accused is prima facie connected with the alleged offence or not. In the present case it is an admitted position on record that police acted on the spy information. In all fairness and in view of the honourable Supreme Court judgments referred to above police must have associated some private person during the alleged arrest. It is also an admitted position that there was delay of 7 days in sending the substance to the Laboratory and such delay has not been explained."
28. Moreover, in the case of Hamza v. The State (2000 PCr.LJ 1360) wherein it was held as under:-- "The perusal of the report of Chemico Bacteriological Laboratory and Chemical Examiner to the Government of Sindh, Karachi shows that the alleged recovered narcotics was sent for Chemical analysis on 16-111995 whereas the alleged' recovery was made on 4-11-1995. The delay in sending the property was not explained by the prosecution particularly when the Chemical Laboratory is situated in Karachi."
29. Similarly in the case of Dildar Ali, PC v. The State (2009 MLD 133) the relevant observations made therein are reproduced as below:-- "As such, presumption can be taken that the sample was tampered with, with some mala fide intention. No private person from the locality was associated as mushir in the present case, though the provisions of section 103, Cr. P. C. Would not be applicable in view of section 25 of the C.N.S. Act, but still each case is to be seen on its own merits, nature and circumstances, as observed by this Court time to time. Not only this, but presence of seven injuries on person and publication of news item in daily "Kawish" on 26-3-2008 and 27-3-2008 respectively, prima facie, create a doubt in the mind that all such things cannot be managed. So far last ground raised by the learned counsel that Inspector Asad Nabi Khichi himself registered the case and investigated the same, though, "all registered cases shall be investigated by the investigation staff in the District under the supervision of the head of investigation provided that the Government by special or general order may entrust investigation of offences under local or special laws as defined in the Pakistan Penal Code and- punishable with imprisonment for a. Term not exceeding three years with or without any other punishment to the police station staff". Therefore, such act of Inspector is a violation of sub-Article (4) of Article 18 of Police Order, 2002, supported by reported and unreported matters (supra), the concession of bail has been extended to the applicant/accused being a case of further enquiry. Offence under section 9 of C.N.S. Act, 1997, though would adversely affect the society, but it was yet to be proved that accused was involved in adversely affecting the society. Even if accused .Charged with including in activities, which were not approved by the society, the society which claimed to be looking after the law and order situation and as custodian of law should follow the law in toto, as no compensation is provided in the judicial system for accused detained, where for a long or short time and ultimately acquitted.
Even otherwise only 200 grams of the alleged Charas was separated and sent for Chemical Analyzer report and such report would be conclusive only to the extent of 130 grams, as net weight of the property received by the office of Chemical Analyzer was 130 grams, and not 200 grams as stated in the F.I.R. The question, whether the entire recovered substance is covered by the definition of Narcotics, would be properly determined at the stage of trial including enmity.
However, at this stage, as a result of tentative assessment, prima facie applicant/accused is responsible for 130 grams Charas received by the office of Chemical Analyzer and no expert opinion is available regarding remaining quantity of Charas." [Underlining is mine].
30. The question of 'extension of benefit of doubt' particularly at least in a case of 'further inquiry' needs to be determined at the bail stage as well, inter alia, keeping in view the difference between 'jail life' and 'free life'. The applicant/accused in the instant case is a young man of phosphoric age and since his arrest is behind the bars [for more than 22 months]. The case as set-up against the applicant/accused is of 'great doubt' and, needs further inquiry. Under circumstances, the accused/applicant cannot be allowed to be kept behind the bars continuously amongst the criminals and that too without any conviction in regular trial. The grant of bail in 'bailable offences' is a right and not a favour. In non-bailable offenses the grant of bail though is not a right but a grace/concession.
31. At this juncture it would be appropriate to refer to the case of Tariq Bashir and 5 others v. The State (PLD 1995 SC 34). The relevant observations at page 40 pertaining to grant of bail read as follows: "It is crystal clear that in bailable offences the grant of bail is a right and not favour, whereas in non-bailable offences the grant of bail is not a right but concession/grace. Section 497, Cr.P.C.
Divided non-bailable offences into two categories i,e, (i) offences punishable with death, imprisonment of life or imprisonment for ten years; and (ii) offences punishable with imprisonment for less than ten years. The principle to be deduced from this provision of law is that in non-bailable offences falling in the second category .(punishable with imprisonment for less than ten years) the grant of bail is 'a-rule and refusal an exception. So the bail will be declined only in extraordinary and exceptional cases, for example:-
(a) where there is likelihood of abscondance of the accused;
(b) where there is apprehension of the accused tampering with the prosecution evidence;
(c) where there is danger of the offence being repeated if the accused is released on bail; and
(d) where the accused is a previous convict."
"7. As regards the first category of offences (punishable with death, or imprisonment for life, or with ten years' imprisonment) the provisions of section 497(1) are not punitive in nature. There is no concept of punishment before judgment in the criminal law of the land. The question of grant/refusal of bail is to be determined judiciously having regard to the facts and circumstances of each case. Where the prosecution satisfies the Court, that there are reasonable grounds to believe that the accused has committed the crime falling in the first category the Court must refuse bail. On the other hand where the accused satisfies the Court that there are no reasonable grounds to believe that he is guilty of such offence, then the Court must release him on' bail. For arriving at the conclusion as to whether or not there are reasonable, grounds to believe that the accused is guilty of offence punishable with death, imprisonment for life or with ten years' imprisonment, the Court will not conduct a preliminary trial/inquiry but will only make tentative assessment, i,e, will look at the material collected by the police for and against the accused and be prima facie satisfied that some tangible evidence can be offered which, if left unrebutted, may lead to the inference of guilt. Deeper appreciation of the, evidence and circumstances appearing in the case is neither desirable nor permissible at bail stage." So, the Court will not minutely examine the merits of the case or plea of defence at that stage."
"9. It is by now judiciously recognized that there is a tendency in our country to involve innocent persons with the guilty. Once an innocent person is falsely involved in a serious case then he has to remain in jail for considerable time. Normally it takes two years to conclude the trial. When a person is detained in the jail, all his dependents also suffer hardships. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case, albeit his acquittal in the long run. So, whenever reasonable doubt arises with regard to the participation of an accused person in the crime, he should not be deprived of the benefit of bail. The bail can neither be withheld nor cancelled as punishment." [Underlining is mine].
32. For the alleged recovery of 3 KGs charas the punishment as provided in the 'chart' vis-a-vis cases under section 9(c) of the. Control of Narcotic Substances Act, 1997 [XXV of 1997] in the case of Ghulam Murtaza an another s'. The State (PLD 2009 Lahore 362) is R.I. For five years and six months and fine of Rs,25,000 or in default S.I. For five months and 15 days. As far as the punishment is concerned the case of the applicant/accused squarely falls within the ambit of section 9(b) of Control of NarcoticSubstances Act, 1997 (Act XXV of 1997). In the case of Nisar Khan v. The State (2013 YLR 1120) it was observed as follows:-- "6. After hearing the learned counsel for the parties, I have come to the conclusion that no doubt 5 KGs charas has allegedly been recovered from the possession of the petitioner but uptil now the Chemical Examiner' report is not available on record, however, the learned State counsel produced the same, opining that the contraband was Charas Pukhta, hence, leaving room to ascertain as to whether the alleged contraband recovered was Charas or otherwise, therefore, the case of petitioner requires further probe. Moreover, it is consistent practice of this Court to allow bail in such like offence keeping in view the quantity. Of contraband recovered." [Underlining is mine].
33, Following the rule laid down by superior Courts vis-a-vis granting of bail, the upshot of the above discussion is that I allow this bail application and admit the applicant/accused to bail however, subject to his furnishing of solvent surety in the sum of Rs,2,50,000 (Rupees Two Lacs Fifty Thousand Only) and P.R. Bond in the like amount to the satisfaction of the learned trial Court.
34. The observations made herein however, are of tentative nature and shall not have any bearing upon the pending proceedings which indeed would be decided on merits and in accordance with law.
' Bail Application stands disposed off.