SHAUKAT ALI RAKHSHANI, J. Applicant seeks bail in case vide FIR No. 18 of 2024 dated 18.01.2024 registered with Police Station, Brewery District, Quetta under the offences punishable under section 9(1) 3(c) of The Control of Narcotics Substances (Amendment) Act, 2022 ("Act of 2022") for possessing 1090 grams of baked 'Charas' recovered from a black colored polythene bag held by the applicant in his right hand.
2. Tersely, facts germane to the application are that complainant Ajram Khan SI/ASHO got registered the FIR ibid with the averments that on 18.01.2024, he along with police contingent were on patrolling duty, who on a tip off, regarding selling of narcotics by the applicant at Brewery Road Essa Nagri, Quetta found the applicant standing at road side, who on seeing the police party tried to escape, but was apprehended and on his personal search, recovered a black colored polythene bag held by him in his right hand, wherein 1090 grams of baked 'Charas' were recovered, whereof parcel No.1 was prepared.
An attempt for grant of bail was made by the accused-applicant before learned Additional Sessions Judge, IX-Special Judge CNS, Quetta ("Trial Court"), but remained unsuccessful as his application for grant of bail was dismissed on 26.02.2024.
3. Mr. Saifullah Durrani, learned coup el for the applicant inter alia contended that the applicant is innocent, who has maliciously been involved in the instant case with the connivance of police officials by his rivals against whom an FIR bearing No.151 of 2023 was lodged. He further stated that the prosecution has failed to bring on record any trustworthy and confidence inspiring evidence, whereas there are material contradictions in their statements, making the case of the applicant one of further inquiry. Added further that the quantity of the charas exceeds a little to the upper limit of section 9 (3)(b) of the Control of Narcotic Substances (Amendment) Act of 2022) ("Act of 1997"), which falls out of the purview of prohibitory clause of section 497 of Cr.P.C.
On the other hand, Mr. Habibullah Gul learned APG vigorously resisted the bail application and refuted the arguments so put-forth by the learned counsel for the applicant and urged that the prosecution has brought overwhelming evidence on record involving the accused-applicant in the instant case, which fact has rightly been endorsed by the Trial Court, while declining his application for grant of bail as his case falls within the prohibitory clause of section 497 of the Criminal Procedure Code, 1898 ("Cr.P.C."), which disentitles the applicant for the concession of bail.
4. Heard. Record scanned out cover to cover with the able assistance of learned counsel for the parties.
5. The applicant has been indicted for having a black polythene bag in his right hand, wherein baked charas in slate form weighing 1090 grams was recovered. Fleeting view of the record, more particularly, the FIR and memo of recovery shows that the charas was weighed with the polythene bag, which was found to be 1090 grams, thus, the prosecution has failed to show that if the polythene bag of charas is separated than what would be the net weight of the charas, henceforth, it would be a case of further inquiry as to whether the recovered charas squares under section 9(3)
(b) or under section 9(3)(c) of the Act of 1997 in order to determine the quantum of punisnment as well as to find out as to whether the sentence falls within the prohibitory clause of section 497 of Cr.P.C. or otherwise.
6. In wake of the above, it can be gathered with no other view that eventually it becomes a border line case between clauses (b) & (c) of section 9(3) of the Act of 1997 as the weight whereof is slightly higher than the prescribed limit of section 9(3)(b). Admittedly, section 9(3)(b) does not fall under the prohibitory clause of section 497 of Cr.P.C., which entitles the accused-applicant for the concession of bail on the principle that bail in the offences of non prohibitory clause is a rule, whilst its refusal is an exception. In this regard, we are fortified with the view expounded in the case of "Aya Khan v. The State" (2020 SCMR 350) and "Muhammad Ishaq v. State" PLJ Cr.C (Note). 94.
7. Corollary, the instant application is allowed; consequent thereto, accused-applicant Imran son of Muhammad Yousaf is admitted to bail, subject to furnishing surety in the sum of Rs.50,000/- (fifty thousand) with PR bond of like amount to the satisfaction of the Additional Registrar of this Court or Trial Court.
The observations made herein-above are tentative in nature, which shall not influence the merits of the case at trial.