Through the instant petition under Sectio n 497, Cr.P.C., the petitioner , namely Mumtaz Hussain alias Kala seeks post-arrest bail in the case FIR No. 295 of 2019 dated 21.12.2019 registered at Police Station Doulat Gate, District Multan in respect of an of fence under Section 9(c) of the Control of Narcotic Substances Act, 1997.
2. As per contents of the FIR, precisely , on 21.12.2019, the petitioner was apprehended and during search, from a bag, "Bhang" weighing 5000 grams was recovered.
3. Arguments heard. Record perused.
4. #TS## According to the contents of the FIR, the petitioner was apprehended by the police on the basis of spy information and 5000 grams Thang' was allegedly recovered from his possession. It is observed, that in the FIR, only recovery of 'Bhang', without speci fying the weight of particular parts thereof, is alleged. In various dictionaries of English language, the word Bhang' is defined as `hemp'. Whether Bhang' is 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 of the Control of Narcotic Substances Act, 1997, 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 extracted 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 Control of Narcotic Substances Act, 1997 and punishable under Section 9 of the said 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 requirem ents' 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 ."
As mentioned above, in the FIR, recovery of Bhang' without specifying parts thereof, from the petitioner has been alleged. Therefore, in the light of the law laid down in the cases titled, "Ghulam Hussain v. State and another" (PLJ 2015 Cr.0 167 (DB) and "Ali Asghar v. The State and others" 2016 MLD 621, it would be' seen during the trial. Whether the case against the petitioner falls within ambit of Section 2(d)(ii) of the CNSA, 1997 or under the Prohibition (Enforcement of Hadd) Order IV, 1979. Furthermore, in another D identical situation, this Court through order dated 9.6.2016, passed in Crl. Misc. No. 919-B/2016, had admitted an accused to bail. The State, for its cancellation, had filed Crl. Petition No. 999-L/2016, before the august Supreme Court of Pakistan, but refused on 25.01.2017. The view of this Court with respect to grant of bail in the matters of Bhang' has further been elaborated by the august Supreme Court of Pakistan by dismissing the leave to appeal filed by the State against various bail granting orders of this Court in case titled "The State v. Muhammad Sarwar and others" (2017 SCMR 1993 ).
The learned Deputy Prosecutor General states that the petitioner is not involved in any other case of the same nature. The investigation of this case has already been finalized, a report under Section 173, Cr.P.C. has been submitted and the physical custody of the petitioner is no longer required at this stage and his continued incarceration is not likely to serve any beneficial purpose.
For the foregoing reasons, the petition- in hand is accepted and the petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs. 500,000/-(Rupees five hundred thous and only) with two sureties each in the like amount to the satisfaction of learned trial Court.
Needless to observe that the observations made hereinabove are only tentative in their nature and are strictly confirmed to the extent of grant of instant bail.