M. TABASSUM AFTAB ALVI, C.J.-- As the supra titled appeals have been directed against the impugned orders of Additional Sessions Judge/Special Judge CNSA, Muzaf farabad, dated 18th September , 2018, and 18th October , 2018, whereby post-arrest bail' was declined to appellants-accused in offence under Section 9(c) of The Control of Narcotic Substances Act, 2001, hereinafter to be referred as CNSA; therefore, these are being consolidated and decided through the instant order .
2. The precise facts forming background of the captioned appeals are that on 5th July, 2018 and 28th August, 2018, Rashad Habib, SHO, Police Station Civil Secretariat, Muzaf farabad, received information through spies that notorious narcotic sellers, Ibrahim Khan Mughal, was selling Charas' in Upper Chhattar Mohallah, whereas Babar Shah, was selling 'Charas' near Ambore Fish Point. Upon the aforesaid informa tion, he along with constables, arrived at the aforesaid places and took into custody the said accused. During search, 'Charas' weighing 1140 grams was recovered from Ibrahim Khan Mughal, accused, and weighing 1120 grams was recovered from Baber Shah, accused. Out of recovered 'Charas', two parcels of 20 and 40 grams were prepared for chemical examination.
3. As per the aforesaid reports, FIR No,107/2018, was registered against Ibrahim Khan Mughal, appellant- accused , whereas FIR No,157/2018, was registered against Baber Shah, appellant-accuse d, in the same offence under section 9(c), CNSA, at Police Station Civil Secretariat, Muzaffarabad, on 5th July, 2018 and 28th August, 2018, respectively .
4. After registration of the aforesaid FIRs, appellants-accused, applied for post arrest bail in offence under section 9(c), CNSA, before Additional Sessions Judge/ Special Judge CNSA, Muzaf farabad, on 15th September , 2018 and 16th October , 2018, respectively , which was declined to them vide the respective impugned orders dated 18th September , 2018 and 18th October , 2018; hence, the instant appeals.
5. Syed Mumtaz Hussain Naqvi and Kh. Arshad Mahmood, Advocates, appearing on behalf of Baber Shah, appellant-accused, submitted with vehemence that accused was implicated in a false and fictitious case. The learned Advocates farther emphasized that the Court below while deciding bail application did not consider argument that the case against appellant, Babar Shah, comes in purview of borderline of sections 9(b) and 9(c) of CNSA, as the alleged quantity of contraband is 1120 grams, which margin is hardly 120 grams over to the quantity defined in Section 9(b), CNSA. The learned Counsel pointed out that in support of the aforesaid argument, an unreported Division Bench case titled "Muhammad Shah, and another v. The State " along with other case law, was also referred to but the Court below failed to consider the same and passed the impugned order dated 18th September , 2018, wrongly; therefore, considering the same, appellant is entitled to be released on bail. The learned Counsel agitated that investigation has been completed and challan has also been submitted before the trial Court; therefore, appellant is no more require d for investigation. They finally craved for grant of bail to Babar Shah, appellant-accused . In support of their arguments, the learned Advocates cited the following authorities:-- i. 2016 PCr .LJ (Lahore) 1718. ii. 2014 PCr .LJ (Sindh) 427. iii. PLD 2015 SC (AJ&K) 31 iv. 2013 MLD 1435 v. 2013 PCr .LJ (Lahore) 1782. vi. 2012 MLD (Sindh) 1032. vii. 201 1 PCr .LJ (Karachi) 177. viii. 2009 YLR (Peshawar) 246. ix. 2009 PCr .LJ (Karachi) 558. x. 2007 SCR 73. xi. Unreported judgment of this Court titled Muhammad Shah etc. The State [decided on 28.08.2018]. xii. Unreported judgment of this Court titled Sadam Hussain and others v . The State [decided on 28.08:2018].
6. Syed Sharafat Hussain Naqvi, Advocate, appearing on behalf of Ibrahim Khan Mughal, appellant-accused, submitted that his client was not selling alleged contraband rather he was arrested in a false and fabricated case due to personal grudge of some police office rs. He pointed out that his client is innocent and allegation levelled against him is baseless, because respondent No,2, did not follow the mandatory provisions of law prescribed in CNSA and violated Rules 4 and 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, while not send ing recovered contraband within prescribed period, whereas it was incumbent to send it for chemical analyses on the same day. The learned Counsel agitated that the case of his client comes within the definition of borderline case , because it has been consistent view of the superior Courts that in cases where recovery of contraband does not exceed the limit between 900 to 1500 grams, being the case of borderline between Sections 9(b) and 9(c) CNSA, accused are granted bail; therefore, treating the case of appellant alike, he is entitled to be released on bail. The learned Counsel also submitted that as per prosecution case 1140 grams 'Charas' was recovered , out of which, only 40 grams was sent for chemical examination; however report of chemical examiner has not been received as yet, which creates doubt in prosecution case. The learned Counsel contended that investigation has been completed and challan has also been presented before the trial Court; therefore, appellant is no more required for investigation; hence, his confinement will not serve any useful purpose. He agitated that in circumstance s of case, his client is entitled to be released on bail, which concession cannot be withheld as a punishment. The learned Counsel finally craved for acceptance of appeal and in support of his arguments, he referred to and relied upon the case titled Ayaz v . The State [201 1 PCr .LJ (Karachi) 177).
7. Conversely , Raja Ayyaz Ahmad, the learned Assistant Advocate General, representing the State, controverted arguments advanced by the learned counsel for appellants-accused and submitted that as per police record, accused are connected with the alleged offences; therefore, they are not entitled to be released on bail. The learned State Counsel finally submitted that the Court below did not commit any illegality while declining bail to appellants-accused; therefore, craved for dismissal, of appeals.
8. We have given our earnest consideration to the arguments addressed at Bar and cursorily gone through record made available.
9. The matter in hand pertains to bail and it is well settled principle of law that at bail stage deeper appreciation of evidence is not permissible, rather a tentative assessment of the same has to be A taken into consideration. As per contents of FIRs, on 5th July, 2018 and 28th August, 2018, Rashad Habib, SHO, Police Station Civil Secretariat, Muzaf farabad, received information throug h spies that notorious narcotic sellers, Ibrahim Khan Mughal, was selling 'Charas' in Upper Chhattar Mohallah, whereas Babar Shah, was selling 'Charas' near Ambore Fish Point. Upon the aforesaid information, he along with constables, arrived at the aforesaid places and took into custody the said accused. During search, 'Charas' weighing 1140 grams was recovered from Ibrah im Khan Mughal, accused, and weighing 1120 grams was recovered from Saber Shah, accused. Out of recovered 'Charas', two parcels of 20 and 40 grams were prepared for chemical examination.
10. The main contention of the learned Counsel for appellants that cases of their clients fall within the purview of borderline of Sections 9(b) and 9(c) of CNSA, as the alleged quantity of contraband is 1120 and 1140 grams, which margin is hardly 120 and 140 grams above from the quantity defined in Section 9(b), CNSA, therefore, they may be released on bail, has been taken into consideration. The learned Advocates appearing on behalf of petitioners relied upon precedent case titled Ayaz v. The State (2011 PCr.LJ (Karachi) 177), wherein, it was observed that in cases where recovery of substance does not exceed the limit between 900 to 1500 grams, the case being of borderline between clauses (b) and (c) of section 9, CNSA, accused can be granted bail. A perusal of the aforesaid judgment reveals that out of 1300 grams, 300 grams 'Charas' was referred for chemical examination but the report of Chemical Examiner showed that instead of 300 grams, laboratory received 270 grams of 'Charas'; thus, benefit of the aforesaid discrepancy was extended in favour of accused of that case, who was granted bail, whereas in the instant appeals no such discrepancies were shown by the learned Advocates for appellants; therefore, on the basis of the aforesaid case law , present appellants cannot be given concession of bail.
11. In the instant cases, 1140 grams 'Charas' was recovered from Ibrahim Khan Mughal, accused, and 1120 grams was recovered from Baber Shah, accused, which exceeds one kilogram as per provision of section 9(b), CNSA, which speaks as under:-- "9(b) imprisonment which may extend to seven years and shall also be liable to fine, if the quantity of the narcotic drug, psychotropic substance or controlled substance exceeds one hundred grams but does not exceed one kilogram."
The Statute has enshrined the figure upto one kilogram, which cannot be twisted by a Court of law. The quantity of narcotic drug psychotropic substance when exceeds the limits specified in the aforesaid section 9(b), the sentence of death or imprisonment for life etc has been provided under section 9(c),CNSA, which speaks as under:-- "9(c) death or imprisonment for life, or imprisonment for a term which may extend to fourteen years and shall also be liable to fine which may be upto one million rupees, if the quantity; of narcotic drug psychotropic substance or controlled substance exceeds the limits specified in clause (b).
Provided that if quantity exceeds ten kilogram the punishment shall not be less than imprisonment for life."
As the matter in hand pertains to bail and under section 51, CNSA some conditions have been postulated to refuse bail in respect of certain offences; therefore, in order to facilitate the matter , we would like to reproduce the aforesaid section as under:- "51. No bail to be granted in respect of certain offences.---(1) Notwithstanding anything contained in sections 496 and 497 of the Criminal Procedure Code, 1898 (V of 1898), bail shall not be granted to an accused person charged with an offence under this Act or under any other law relating to narcotics where the offence is punishable with death.
(2) In the case of other offences punishable under this Act, bail shall not be normal ly granted unless the Court is of the opinion that it is a fit case for the grant of bail and against the security of a substantial amount."
From the language employed in a statute 'it can be gathered whether it is manda tory or directory in its nature. A reading of the aforesaid section reveals that no bail could be granted in respect of offences committed under CNSA and provisions of sections 496 and 497, have expressly been excluded. However , an elbow room was left at the discretion of the Court under subsection (2) of section 51, CNSA where statute has laid down that bail should not normally be granted unless Court was of the opinion that it was a fit case for grant of. bail. The words "fit case for grant of bail" used in statute would depen d on facts of an individual case and are required rather more favourable circumstances appearing on record in favour of accused to get entitlement to the concession of bail. Therefore, observation made by the Court below for not granting bail to appellants, in view of the aforesaid section, seems correct. Moreover , a tentative perusal of police record reveals that appellants, prima-facie, are involved, in spreading narcotics in society and their cases are hit by prohibition contained in section 51, CNSA therefore, they are not entitled to be released on bail.
12. The contention of the learned Counsel for Ibrahim Khan Mughal, appellant-accused, that respondent No,2, did not follow the provisions of law prescribed in CNSA and violated the mandatory provisions of Rules 4 and 5 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, while not send ing recovered contraband within prescribed period, whereas it was incumbent upon the officer who recovered contraband, to send it for chemical analyses on the same day, has also been taken into consideration. A perusal of the aforesaid Rules 4 and 5 indicates that the said Rules did not place any bar on Investigating Officer to send samples beyond seventy-two hours of seizure of substance. Moreover , Rules 4 and 5 are directory and not mandatory , which cannot control substantive provisions of CNSA, which were to be applied in such a manner that its operation would not frustrate the purpose of CNSA under which those were framed. Thus, failure to follow said Rules would not render seizure of the alleged substance an absolute nullity . The contention of the learned counsel is, therefore, overruled.
13. After cursorily going through record of the instant cases, we are of the consid ered view that the Court below , while declining bail to appellants-accused did not commit any illegality; hence, the impugned orders recorded by Additional Sessions Judge/Special Judge CNSA, Muzaf farabad, dated 18th September , 2018, and 18th October , 2018, are upheld.
14. The authorities cited by the learned Counsel for appellants are distinguishable from the facts and circumstances of the instant cases; therefore, the same are not helpful to their clients.
15. The crux of above discussion is that finding no substance in the instant appeals, these are hereby dismissed.
However , the trial Court seized with the matter is directed to decide the titled cases within a period of two months, after receipt of the instant order . A coy of the instant order shall be annexed with other relevant file.