' MUHAMMAD TARIQ ABBASI, J.---The petitioner namely Ali Asghar seeks post arrest bail in case' FIR No. 394/2014, dated 08.06.2014, registered under Section 9(c) of the Control of Narcotic Substances Act, 1997, at Police Station Seetal Maari, District Multan.
2. The precise facts, as per FIR are that on 8.6.2014, when Muhammad Saleem, SI (complainant), along with other Police officials was on patrolling, he received a spy information that the petitioner having 'bhang' was available at Samejabad, Multan; the complainant along with his companions, reached at the spot and apprehended the petitioner; during search, from a bundle (Gattu), which he was lifting, 'bhang' weighing five kilogram was recovered.
3. After hearing learned counsel for the parties and perusing the record, it is observed that in the FIR, only recovery of 'bhang', without specifying particular parts thereof, is alleged. In various dictionaries of English language, the word 'bhang' is defined as 'hemp'. Whether 'bhang' a narcotic substance, is a question, the answer of which could be found in Section 2(s) of the Control of Narcotic Substances Act, 1997, where narcotic drug has been defined as Coca leaf, cannabis heroin, opium, poppy straw and all manufactured drugs. The term "cannabis (hemp)" has been defined in Section 2(d) of the Act ibid, in the following terms:--
(i) cannabis resin (charas) that is, the separated resin, whether crude or purified obtained from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish;
(ii) the flowering or fruiting tops of the cannabis plant (excluding the seed and leaves when not accompanied by the tops) from which the resin has not been exirected by whatever name they may be designated or known; and
(iii) any mixture with or without neutral materials of any of the above forms of cannabis or any drink prepared therefrom; ' From the above mentioned definition, given in Section 2(d)(ii), it is clear that if "bhang (hemp)" contains specific parts, flowering or fruiting tops, from which resin has not been extracted, then the case would be covered by the Act ibid and punishable under Section 9 of the Act. In this regard, reliance may be placed to the case of "Fazeelat Bibi v. The State" (2007 YLR 3021), the relevant portion whereof reads as under:-- "This clearly establishes that when Bhang/hemp is referred to without specification of any particular part of the said plant and without the other details mentioned above the offence would be covered by the provisions of the Prohibition (Enforcement of Hadd) Order, 1979 and recovery of Bhang/hemp would attract the provisions of the Control of Narcotic Substances Act, 1997 only when the requirements of section 2(d) thereof are fulfilled. In the case in hand the FIR, the Memorandum of Recovery and the report of the Chemical Examiner do not specify as to whether the substance allegedly recovered from the petitioner's possession was the flowering or fruiting tops of the cannabis plant or not, as to whether the same excluded the seeds and leaves when not accompanied by the tops or not and as to whether resin had been extracted from the recovered substance or not. In these circumstances prima facie it is difficult for us to hold that the requirements of section 2(d) of the Control of Narcotic Substances Act, 1997, were fulfilled in the case in hand so as to attract the said Act to the present case. Thus, we have no other option but to fall back upon the provisions of the Prohibition (Enforcement of Hadd) Order, 1979 vis-a-vis the allegation against the petitioner."
4. As stated above in the situation in hand, no particular part of the alleged recovered substance (bhang) has been described. The report of the chemical examiner is still awaited, hence till now the nature and kind A of alleged recovered substance could not be confirmed. It would be seen during the trial whether the offence would fall under the provisions of the Act ibid or the Prohibition (Enforcement of Hadd) Order, 1979.
5. The petitioner is behind the bars, he is no more required for any further investigation in this case and nothing is to be recovered from him. Keeping him, confined in the jail would serve no useful purpose. Resultantly, this petition is allowed, and the petitioner is admitted to bail, subject to furnishing bail bonds in the sum of Rs.2,00,000/- (Rupees two lac only) with two sureties each, in the like amount to the satisfaction of the learned trial Court.