2007 PLP 2968 (YLR)

Under section 9(c) of the Control of Narcotic Substances Act, 1997, in Crime No.92/2006 registered at Police Station Market, Larkana. The bail application on behalf of the applicant was dismissed on 11-11-2006 by the learned Special Judge (Narcotics), Larkana. The applicant being aggrieved with the said impugned order has preferred this application for bail on similar grounds. The brief' facts as enumerated in the F.I. R. -are that on 3-9-2006 S.I.P. , Aijaz Khan Pathan along with his subordinate staff after incorporating Roznamcha entry No.6, dated 3-9-2006 proceeded in city for the purpose of patrolling. After patrolling differelit spots when they reached near Baharpur Road near Gross Piri, they received spy information that Mehboob Ali (applicant) in front of his house is selling Bhang and Charas. The police party proceeded towards the place of incident. The applicant/accused after verifying the presence of the police officials took the hatchet and attacked upon them with intention to commit their Qatl-i- amd. At the place of incident Mitho and Alam having pistols in their hands, whereas Sattar with pistol, Fareed and Wakeel having repeater and gun in their hands and one unidentified person armed with pistol, came out from the house of accused Mehboob Ali and fired shots from their weapons at the police party. There was exchange of firing for about been minutes. However, the police party overpowered applicant Mahboob Ali along with his hatchet and other nominated accused escaped their good. The police party enquired the names of ether co-accused from the applicant Mahboob Ali and took the personal search. They secured charas from the big pockets of the Sadri (Waistcoat), which was wearing below his shirt. The contraband material was weighed, which become 1010 grams 110 grams charas was separated and sealed as sample and the remaining 900 grams charas was separately sealed. The police party.also verified that the dried Bhang was lying in one bag and in three bags moist Bhang was also lying. Weight of the Bhang was also made and dried Bhang become five kilograms and moist Bhang become 35 kilograms. He separated 1000 grams from dried Bhang and 500 grams from the moist Bhang respectively and sealed the same as sample and the remaining dried and moist Bhang were sealed separately. After due investigation, case under section 9(c) of the Control of Narcotic Substances Act, 1997 was registered separately. The police also registered another case being Crime No.91/2006 under sections 353; 324, 34, P.P.C. Mr. Habibullah G. Ghori, learned counsel for the applicant has contended that the applicant/accused has beat involved due to enmity with the police party. The applicant/accused has sought bail in Crime No.91/2006 for offence under sections 353, 324, 34, P.P.C. from the trial Court. It is further contended that 10 grams quantity of the charas marginally exceeds the limits of thousand grams, therefore, this is a borderline case between clauses "b" and "c" of section 9 of the Control of Narcotic Substances Act, 1997, which required further enquiry as contemplated under section 497(2), Cr.P.C. Mr. Habibullah G. Ghori, has relied upon the case of Sherin Muhammad v. The State (2006 PCr.LJ 726) and Shahmore v. The State (PLD 2003 Kar. 230) and an unreported authority of this Court in Criminal Bail Application No.473/2006 re: Imtiaz Ali v. The State. Mr. Muhammad Ismail Bhutto, learned State counsel has not controverted the grounds agitated by the learned counsel for the applicant. We have heard Mr. Habibullah G. Ghori for the applicant and Mr. Muhammad Ismail Bhutto appearing on behalf of the State. The contraband charas weighing 1010 grains has been recovered from the possession of applicant during the raid. The quantity of 1010 grams marginally exceeds the limits of thousand grams, therefore, a borderline case in between clauses "b" and "c" of section 9 of Control of Narcotic Substances Act, 1997 is a point of discussion and further enquiry to determine the will of the applicant. The applicant/accused was arrested on 3-9-2006 and the case has not been fixed for recording the evidence by the trial Court as pointed out by learned counsel for the parties. In view of the foregoing reasons and the case-law cited at the bar and no objection of the learned State counsel, we are of the view that the applicant's case requires further inquiry as contemplated under section 497(2), Cr.P.C. Resultantly, applicant is entitled for the concession of bail. Bail is granted to the applicant on furbishing surety in the sum of Rs.200,000 and P. R. bond in the like amount to the satisfaction of the trial Court. H.B.T./M-122/K Bail granted.