1. ' RAJA QURESHI, J.--- Through the present bail application, the applicants Liaquat Ali Shah son of Haji Juman Shah and Abdul Aziz alias Rajoo son of Amb seek bail in respect of Crime No,59 of 1997 registered at Police Station Kazi Ahmed under section 6/9 of the Control of Narcotics Substances Ordinance. Briefly the facts of the case are that one Muhammad Suleman, S.-I.P. Being S.H.O. Of Police Station Kazi Ahmed had on 10-8-1997 recorded the F.I.R. Against the present applicants stating therein that he alongwith his subordinate staff were proceeding for patrolling duty and while they were patrolling they had received a spy information that the applicants were selling Charas in a street. However, the applicants are stated to have been apprehended and on search a quantum of 500 grams of Charas stated to have been recovered from applicant Liaqat Ali Shah, whereas a quantum of 250 grams of Charas is further stated to have been recovered from the possession of applicant Abdul Aziz alias Rajoo.
2. ' The legal propositions for the purposes of seeking bail, as canvassed by the learned counsel for the applicants, are that the provisions of section 21 of the Narcotics Substances Act haft been violated. He has further contended that a specified procedure has been prescribed under section 21 whereby search, seizure and arrest are to be made which have not been followed in the instant case. The learned counsel further contended before us that section 103 of the Cr.P.C. Has not been adhered to by the police officials and the case of the applicant does not fall within the prohibitory clause of section 497. It was contended that the police could not have arrested and or recovered the contraband in question without obtaining warrants or for that matter the Charas recovered from both the applicants was not sent to the Chemical Examiner for Report and that the applicants are in custody since 10-8-1997. The learned counsel for the applicants has relied upon reported judgments appearing in 1997 PCr.LJ p.1974, 1997 PCr.LJ p.109. These judgments relate to giving benefit of doubt to the applicants, in the event if it is found that the contraband has not been sent for chemical examination. The learned counsel has further relied on 1997 PCr.LJ 107. Reliance has also been placed on an unreported order vide Criminal Bail Application No,63 of 1996 before the Circuit Bench passed by our brother Judges Amanullah Abbasi, Rana Bhagwan Das, JJ. Wherein bail has been granted to the applicant who was found to be in possession of three pieces of Charas and 20 small packets containing heroin. In yet another unreported order vide Ahmed Khan v. The State Criminal Bail Application No,330 of 1996) recorded by our brother Judges Rana Bhagwan Das, J. Zakir Hussain Mirza (as his Lordship then was).
3. ' On the other hand, the learned State Counsel has invited our attention to the aspect that Chemical Report is not available on record. We would in the instant case, refrain from embarking on the questions in relation to the consequences which are likely to flow if the contraband has not been sent for chemical examination or there has been a delay in sending the contraband for chemical examination. In so far as the unreported judgments, reliance on which has been placed by the learned counsel for the applicant is concerned, suffice it to say that the judgments are prior to the promulgation of the Control of Narcotics Substances Act. Moreso, one glaring feature is that there is a joint Mashirnama in relation to the recovery of contraband from both the applicants which will make the case doubtful. In so far as absence of private Mashirs and not complying with the provisions of section 103, Cr.P.C. We would only observe that under the provisions of the Act.
4. Section 25 provides an exception to the compliance of the provisions of section 103, Cr.P.C. Moreso section 21 also is not a total bar whereby the entire proceedings would stand nullified and or void.
5. The fact that remains to be considered is the quantum of contraband alleged to have been recovered, the period of time that the applicants have remained in custody, and the maximum punishment provided for the alleged offence. There is no cavil with the aspect that maximum punishment provided is seven years in respect of the alleged offence against the applicants and, therefore, their case would not fall within the prohibitory clause to section 497 and bail in such cases when the allegation does not make an offence fall within the prohibitory clause is to be granted as a rule and withholding such bail will tantamount to be an exception. As such for the limited purpose of bail there appears to be an element of attraction in the arguments advanced at the Bar and we are inclined to exercise the discretion in favour of the applicants who have remained behind the bars for the last nearly six months. Even if the chemical examiner's report had been available on record yet, the position would not have altered and if the same has still till today not been placed on record, the inference would be that contraband in question, perhaps, hie not been sent for such examination and if they are sent at this point of time then also benefit flowing, if any, would flow in favour of the applicants. We, would therefore, direct the applicants to be released on bail, upon their furnishing one surety each in the sum of Rs,1,00,000 (Rupees one lac) and P.R. Bond in the like amount to the satisfaction of the Additional Registrar of this Court.