MUHAMMAD HASHIM KHAN KAKAR, J.---Through this application, the applicant viz. Rahim Baldish son of Hal- ud-Din, seeks concession of bail in Crime No.90 of 2020 dated 02.5.2020, under section 9(c) of the Control of Narcotic Substances Act, 1979 of Police Station City, District Kech, lodged on the report of one Abdullah, IP, which was declined by the learned Special Judge for CNS, Mekran at Turbat vide order dated 13.05.2020.
2. It is case of the prosecution that on 02.05.2020 at 3:50 p.m. the complainant along with other police personnel of PS City, Turbat during checking at Police Naka at Link Road Overseas Colony , stopped the accused/applicant, who was riding a motorcycle and found a plastic bag on his lap. On search of the said bag they recovered two kilograms of charas , while also recovered 200 grams of charas from right side of his pocket.
3. Mr. Habib-ur-Rehman Baloch, learned counsel for the applicant contended that the instant case is of borderline between clauses (b) and (c) of section 9 of the CNS Act, 1997. He' further submitted that the quantum of sentence has to be commensurate with the quantum of substance recovered. According to the learned counsel, the Court, while dealing with the bail matter , is not supposed to keep in mind the maximum sentence provided by the Statute but the one which is likely to be entailed by the facts and circumstances of the case. In support of his contention, he placed reliance on the cases of "Noshad v. State " ((sic) PCr.LJ 1901), "Noor Khan v. State (2012 MLD 1542 ), "Ghulam Murtaza v . State " (PLD 2009 Lahore 362 ) and "Jamal-ud-Din v . State " (2012 SCMR 573 ).
4. On the contrary , Mr. Yaya Baloch, learned Additional Prosecutor General, while opposing the instant application, contended that huge quantity of narcotics has been recovered from the personal possession of applicant, therefore, he is not entitled to the concession of bail.
5. So far as the first contention of the learned counsel regarding the quantity of recovered substance is concerned, it has been consistent view of the Super ior Courts that in cases where the quant ity of 400/500 grams marginally exceeds the upper limit of 1000 grams, being borderline cases between clauses (b) and (c) of section 9 of the CNS Act, 1997, the applicants have been admitted to bail; however , in the instant case, besides recovery of 2000 grams of charas 26 grams of crystal, have also been recovered from the personal possession of accused/applicant, thus, it is not a case of borderline.
6. Reverting to the second limb of argument, undoubtedly , in Jamal-ud-Din's case, the accused was admitted to bail by the honourable two member bench of the Supreme Court with the observation that while hearing a petition for grant of bail the Court is not to keep in view the maximum sentence provided by the Statute for the charged offence, but the one, which is likely to be entailed. However , subsequently , a three-member bench of the Hon'ble Supreme Court in the case of "Socha Gul v. State" (2015 SCMR 1077 ), while refusing bail in a narcotics case observed as under:- "5. From the above reproduction, intent and scheme of the legislator is quite clear about the quantum of prescribed punishment under section 9(c) (ibid), which could be either death or imprisonment for life or an imprisonment for a term which may extend to fourteen years, in addition to fine up to One million rupees. In our opinion, in such circumstances, neither categorization of sentencing nor any guess work or speculative exercise could be undertaken by the Court at bail stage to enlarge and accused on bail in such crimes, which will amount to pre- empting the mind of the trial Court, contro lling its powers in the matter of sentencin g an accused and determining a quantum of sentence upon his conviction".
While dilating upon the proposition in hand it was further observed that: "It is pertinent to mention here that the offences punishable under C.N.S Act of 1997 are by its nature heinous and considered to be the offences against the society at large and it is for this reason that the statute itself has provided a note of caution under section 51 of C.NS Act of 1997 before enlarging an accuse d on bail in the ordinary course.
When we refer to the standards set out under section 497, Cr.P.C. for grant of bail to an accused involved in an offence under section 9(c) of C.N.S. Act of 1997, even on that basis we find that an accused charged with an offence, prescribing various punishments, as reproduced above, is not entitled for grant of bail merely on account of the nature or quantity of narcotics substance, being four kilograms. Firstly , as deeper appreciation of evidence is not permissible at bail stage and secondly , in such situation, looking to the peculiar features and nature of the offence, the trial Court may depart from the normal standards prescribed in the case of Ghulam Murtaza (supra) and award him any other legal punishment. Thus, in our opinion, ratio of judgment in the case of Ghulam Murtaza (supra) is not relevant at bail stage."
For the discussion made hereinabove, the application, being without merits, is accordingly dismissed. However , the observations made hereinabove are purely tentative in nature only for disposal of the instant application and the trial Court should not be influenced by it in any manner .