1. ' MUHAMMAD ROSHAN ESSANI, J.---The facts leading to present application for bail are that applicant/accused Seleem Hyder is facing trial in a case before Special Judge for Narcotics Karachi East arising out of F.I.R. No,230 of 1997, dated 11-12-1997 of Police Station Birgade of Karachi East under section 6 and 9 of the Control of Narcotic Substance Act, 1997. The contents of the F.I.R.
2. Are reproduced below:-- ' "Today on 11-12-1997, I, SI Muhammad Yaseen Gujar alongwith police party was partolling in Government mobile within the jurisdiction and when reached at Nursery Road, I received spy information that one person namely Saleem Hyder son of Abrar Hussain who used to smoke and sell 'Charas', is available at Faisal Chowk and was selling charas. On this information, I, S.I. Alongwith the police party reached in mobile I, at the spot at 7.15 hours. On the pointation by the spy, one persons who was concealing himself was encircled and arrested with the help of police party. On inquiry, he disclosed his name was Saleem Hyder son of Abrar Hussain. In presence of H.C. Asif Ali Shah No,2714, P.C. Ali Muhammad No,3964, his personal search was made, from which about 100 grams of charas in different pieces wrapped in black plastic was recovered from the right side below pocket of his inner shirt. Further search was conducted from which Rs,50, the selling amount of the Charas was recovered. The recovered charas was taken into possession under a memo as per personal search. The said act of accused Saleem Hyder son of Abrar Hussain falls under sections 6 and 9 of Narcotics Act, therefore, he was arrested and brought at the Police Station. After registering the case under section 6/9 of Narcotics Act against the accused, I, S.I. Am busy in the investigation. Copies of F.I.R. Were distributed as per rules."
3. ' Applicant/accused applied for bail before the trial Court but the same was refused by impugned order dated 26-12-1997.
4. ' Mr. Muhammad Nawaz Shaikh, learned counsel has contended that applicant/accused is innocent and that he has been implicated in this case mala fidely and dishonestly; that the alleged offence does not fall within the prohibitory clause of section 497, Cr.P.C.; that the alleged incident took place at 7.15 a.m. At Faisal Chowk which is a thickly populated area but no private person was picked by the police to act as mashir of alleged recovery; that both the witnesses of the alleged recovery are from police force and subordinates of complainant; that the applicant/accused is no more required for the purpose of investigation as he is in judicial custody; that subsection (3) and
(4) of section 6 of the Anti-Narcotic Force Act, 1997 have been viotated; that enlargement of applicant/accused on bail will meet the ends of justice.
5. ' Mr. Muhammad Sarwar Khan, learned Additional Advocate-General appearing on behalf of State has conceded to the grant of bail (sic).
6. ' We have examined the relevant provisions of control of Narcotic Substance Act, 1997. Charas is defined as "cannabis (hemp)" under section 2(d) of the said Act. Section 9 whereof provides punishment for the offences specified in sections 6 and 7 or 8 which is two (2) years or with fine or with both when the quantity of Narcotic Drug (which includes cannabis) Psychotropic substance or controlled substance recovered is less than 100 Grams. In case the quantity exceeds 100 grams but does not exceeding 1 Kg. Then punishment extends to (7) years and the offender shall also be liable to fine and in a case where alleged recovery is more than 1 Kg. Then sentence of death of imprisonment for life or imprisonment for a term which may extend to 14 years and fine which may be upto one million rupees is provided. There is also one proviso which lays down that in cases the quantity exceeds ten Kgs., the minimum punishment shall be imprisonment for life. In the circumstances, we are inclined to agree with learned counsel that this is a fit case for the grant of bail.
7. ' In the case of Tariq Bashir and 5 others v. The State reported in PLD 1995 SC 34, Hon'ble Supreme Court held that in bailable offences grant of bail is a right and not favour, whereas in non-bailable offences grant of bail is not a right but a concession/grace. Following principles have been laid down for refusal of bail in offences which are non-bailable.
(a) Where there is likelihood of abscondence of the accused;
(b) Where there is apprehension of the accused tampering with prosecution evidence;
(c) Where there is a danger of the offence being repeated if the accused is released on bail; and
(d) Where the accused is previous convict.
8. ' In another case Mst. Fahmida v. The State reported in 1997 SCM R 947, bail was granted to petitioner, who was facing trial before the Special Judge Hyderabad in a case registered under sections 6, 9, 12 and 13 of the Control of Narcotic Substance Ordinance, 1995. One of the grounds which found favour with the Hon'ble Supreme Court was the violation of section 103, Cr.P.C.
9. In the instant case, recovery is not made in the presence of respectables of the locality though complainant had advance information. The maximum punishment prescribed for the alleged offence does not fall within the prohibitory clause and report of chemical analyser is not yet received. Moreover, prosecution has not alleged that applicant/accused will abscond or tamper with prosecution evidence. On the contrary, learned State counsel has conceded to the grant of bail, as stated hereinabove.
10. The upshot of the above discussion is that the case of the applicant/accused required further enquiry as contemplated under section 497(2), Cr.P.C.
11. By the short order dated 10-2-1998 we had granted bail to the applicant/accused and above are the detailed reasons of our short order mentioned herein.