' ZAHEER-UD-DIN KAKAR, J.---Applicants Naimatullah and Hameedullah seek post-arrest bail in case FIR No,103 of 2016, under section 9(c) of the Control of Narcotic Substances Act, 1997, registered with Levies Thana, Chaman, District Killa Abdullah on 21.9.2016.
2. Plea of post-arrest bail of the applicants did not find favour with the Special Judge, CNS, Killa Abdullah at Chaman, who dismissed their Bail Application No,15/2016 vide order dated 29.12.2016, hence the instant application.
3. Precisely stated facts of the case as per FIR are that on 21.9.2016 at about 4:00 p.m. The complainant IP/SHO Shahid Saleem along with other police, ATF and levies officers/officials were on area patrolling and when reached at Qandhari Adda, Chaman, received spy information that the applicants along with their companions are running business of the narcotic, arms and stolen articles. On such information, the police party reached at the garage of applicants, where they were found present and the raiding party conducted search and recovered 1200 grams raw charas, 162 pelvises of Heroin weighing total 100 grams, seven pelvises crystal (cocaine) total weighing 30 grams and 10 grams Opium. Samples were separated and sent to FSL for chemical analysis whereas the remaining contraband items were sealed in separate parcels.
4. Learned counsel for the applicants, inter alia, argued that there is no reasonable ground to believe that the applicants have committed the alleged offence; that applicants are innocent; the prosecution's story is false, fabricated and concocted and highly unbelievable and without any independent or corroborative piece of evidence. He further contended that the instant case is of borderline between clauses (b) and (c) of section 9 of Control of Narcotic Substances Act, 1997. The PWs are interested and are police officials, as such, there is no likelihood to tamper with the prosecution case, if the applicants are released on bail. Since the challan has. Been submitted, therefore, the applicants/accused are no more required for further investigation. Hence, this is a case of further inquiry into the guilt of the applicants and fall within the meaning of section 497(2), Cr.P.C.
5. Learned State Counsel opposed the contentions raised by the learned counsel for the applicants and stated that the offence under section 9(c) of CNS Act, 1997 is non-bailable, therefore, the applicants are not entitled for grant of bail.
6. I have heard learned counsel for the parties and have gone through the record available. It is settled law that at the bail stage deeper appreciation of evidence cannot be gone into and only it is to be seen as A to whether applicants are prima facie connected with the commission of offence or not. It is admitted position in view of material available on record that 1200 grams raw charas, 100 grams Heroin, 30 grams Crystal (cocaine) and 10 grams Opium (total 1340 grams narcotic) was recovered from a garage, where the applicants were allegedly present. It has been consistent view of the superior Courts that in cases where recovery of narcotic substance does not exceed the limit between 900 to 1500 grams the case being of borderline between clauses (b) and (c) of Section 9 of CNS Act, 1997, therefore, invariably in all cases applicants have been admitted to bail.
In this regard, guidance can be taken from the cases of "Ayaz v. The State" (2011 PCr.LJ 177), "Taj Ali Khan v. The State" (2004 YLR 439), "Gulab Hussain v. The State" (2009 YLR 189), "Mehboob Ali v. The State" (2007 YLR 2968).
In the case of Ayaz (supra) learned Single Judge of the Sindh High Court has observed as under:- "It has been consistent view of the superior courts that in cases where recovery of substance does not exceed the limit between 900 and 1500 grams it has been held by the superior courts that the case being of borderline between clauses (b) and (c) of Section 9 of Control of Narcotic Substances Act, 1997 and invariably in all cases applicants have been admitted to bail."
In case of Taj All Khan (supra) the learned Single Judge of Peshawar High Court observed as under:-- "Not only because the quantity of 500 grams marginally exceeds the upper limit of 1000 grams, therefore, being a borderline case between clauses (b) and (c) of section 9 and also because in the given circumstances whether maximum punishment of 14 years provided in the alternative would be awarded or not is also a point of discussion and further enquiry. Also from the record it is established that he is a previous convict or involved in the same and similar offence in the part."
In case of Gulab Hussain (supra) the learned Single Judge of Peshawar High Court while dealing with the discrepancy in weight of recovered substance observed as under:-- "The charas recovered is 1200 grams which by margin exceed 1000 grams. The Court while seized of the bail application has also to keep in mind the maximum sentence likely to be awarded to the accused"
Similarly, in case of Mehboob All (supra) the learned Division Bench of Sindh High Court (Karachi) has observed as under:--- "The contraband charas weighing 1010 grams has been recovered from the possession of applicant during the raid. The quantity of 1010 grams marginally exceeds the limits of thousand grams, therefore, a borderline case is between clauses (B) and (C) of section 9 of Control of Narcotic Substances Act, 1997 is a point of discussion and further enquiry to determine the guilt of the applicant."
7. Furthermore, investigation has already been completed and the applicants are no more required further to the police, hence, their further C detention will not serve any useful purpose and there is no apprehension of tampering with the prosecution evidence.
8. In view of the above discussion and aforesaid consistent view of the superior Courts and applying the same to the present case appears to be borderline case which attracts the provision of clauses (b) and (c) of section 9 of the CNS Act, 1997, the benefit of such discrepancy is to be extended to the present applicants. Accordingly, the application for {{ Incomplete Citation }}