1. ' MUHAMMAD ROSHAN ESSANI, J.---This is a bail application filed by the applicant Malak son of Dur Muhammad who is facing trial alongwith co-accused under section 9 of Control of Narcotics Substance Ordinance (Now Control of Narcotics Substance Act, 1997).
2. ' The allegations as per No,2 of 1997 lodged on 22-2-1997 by the complainant Muhammad Saleh Keerio, Excise Inspector, Camp at Sakrand are that on 21-2-1997 at 4-45 p.m. Spy information, he accompanied by Excise Staff reached National High Way by Pass near Sakrand and stopped a Wagon No,950- 580/Hyd coming from Kazi Ahmed and found in the Wagon on lady and two persons in suspicious condition. On enquiries, she disclosed her name as Noor Bibi, while two male persons disclosed their names as Allah Dad and Malak. It is alleged that on search, in all six plastic bags containing each one killo gram heroine powder were recovered from the possession of Mst.
3. Noor Bibi All the three were arrested by the complainant and such Mashirnama was prepared in presence of Mashirs Hadi Bux and Ayaz Hussain.
4. ' The applicant moves bail application in the Trial Court, which has been dismissed by the learned Special Judge, Narcotics Nawabshah by the order, dated 7-4-1997.
5. ' Mr. Abdul Rehman Kazi, learned counsel for the applicant has submitted that the applicant is innocent and has nothing to do with the alleged recovery of the heroine. He contends that admittedly the alleged heroine has not been recovered from the possession of the applicant but entire heroine has been recovered from Mst. Noor Bibi as per F.I.R. The learned counsel further submits that the applicant has no association with Mst. Noor Bibi and that it is yet to be destermined at trial by the prosecution that the applicant had any association with Mst. Noor Bibi and till that fact is established, the applicant is entitled to bail. The learned counsel has further contended that despite spy information and availability of passengers in the Wagon, Excise employees, who are partymen of the complainant, have been made Mashirs of the arrest and recovery. Lastly, the applicant's counsel's contention is that there is no Report of Chemical Examination to show that the alleged substance is actually heroine powder or some other substance. The learned counsel stressed upon that the case of the applicant requires further enquiry under section 497(2), Cr.P.C. And he is entitled to bail.
6. ' The learned counsel in support of his bail plea has relied upon the decision reported in Mirza Shah v. The State 1992 SCM R 1475 and Saif Ullah alias Bhola v. The State 1995 M LD 946 Mr. Bahadur Ali Baloch, learned State Counsel has conceded to the grant of bail.
7. ' We have heard the learned Advocates for the parties. We have also gone through entire police papers, the contents of F.I.R. And order, dated 7-4-1997 of the learned Trial Court and have gone through the case-law cited at the bar. We may however, observe that the two citations referred to above, are, however, not applicable to the facts of the case and do not apply to the newly enacted (Control of Narcotic Substances Act, 1997).
8. It is admitted position as per F.I.R., that entire quantity of heroin has been recovered from the possession of Mst. Noor Bibi and nothing has been recovered from the applicant. The applicant is said to be resident of Quetta while Mst. Noor Bibi is said to be resident of Saeedabad Lyari, Karachi.
9. It is, therefore, yet to be determined at trial by the prosecution as to whether the applicant had any association with the co-accused Mst. Noor Bibi as required under section 15 of the Control of Narcotics Substance, 1996.
10. ' We are also of the tentative view that even if the applicant was travelling with Mst. Noor Bibi, whether the applicant had sufficient knowledge that Mst. Noor Bibi was in possession of the alleged heroine, which aspect of the case requires determination at trial. Admittedly, both Mashirs are Excise Employees and no reason was assigned as to why no independent Mashirs were associated despite availability of Wagon passengers. No efforts were made to make any of such passengers as Mashir of the alleged recovery. The Report of Chemical Examinaner is still awaited. In view of the above, the learned State Counsel has raised no objection to the grant of bail to the applicant.
11. ' Considering all the aspects of the case, we are of the considered view that a prima facie case for bail has been made out by the applicant and that this case requires further enquiry under section 497(2), Cr.P.C. Here, we would like to observe that all the above observations are tentative in nature and that in no manner it will prejudice mind of the Trial Court in arriving final decision.
12. ' We, therefore, accept this bail application and grant the bail to the applicant, who shall be released on bail on his furnishing one solvent surety in the sum of Rs,2,00,000 (Rupees two lacs only) and P.R. Bond in the like amount to the satisfaction of the learned Trial Court.