2008 P Cr (PLP)

SYED YAHYA ZAHID GILLANI, J.

Nineteen capsules containing 130 grams heroin, put in the bottle of shampoo, placed in the bag of accused/petitioner, were. recovered at Peshawar Air Port, when he was going to fly abroad. He disclosed swallowing some capsules containing heroin, during interrogation. Therefore, he was sent to Hayat Abad Medical Complex, Hospital, where he was treated by Dr. Sharjeel and he managed to drain out 81 capsules from the belly of accused, containing 550 grams heroin, which were delivered to Investigating Officer. The heroin so recovered in two parts was taken in possession through two different recovery memos. The case was registered vide F.I.R. No.20, dated 3-3-2008 of Police Station A.N.F., Peshawar under section 9(b), C.N.S.A.

2. The accused/petitioner Fayaz Khan was declined bail by Mr. Anwar Hussain Khan learned Judge Special Court (C.N.S.), Peshawar on 27-3-2008.

3. While arguing on the present bail application Miss Farhana Marwat, Advocate, referring some unreported cases of this Court, argued that the accused is punishable only up to seven years' imprisonment, as it falls under section 9(b), C.N.S.A. It is not hit by prohibitory clause of section 497, Cr.P.C. In such-like cases the grant of bail is a rule. For refusal, exceptional grounds are required, which are wanting. She also placed reliance on 2007 PCr.LJ page 1019, which is not applicable in this case because in the reported case there was a background of enmity, behind the arrest. The copies of unreported cases were not supplied. Concludingly she further argued that the accused/petitioner has no previous history of involvement in such-like' cases, therefore, lenient view may be taken in his case.

4. Mr. Salahuddin Khan D.A.-G.. for State opposed the petition on two grounds. Firstly, that although the case is punishable with seven years' imprisonment, but the bar under section 51, C.N.S.A. equally applies to it; and secondly, that challan has been submitted and the accused/petitioner has been summoned to face trial. In such circumstances, he should not be granted bail in the light of observations of Honourable Supreme Court in the case in 2006 SCMR 1265.

5. In the peculiar facts and circumstances of this case, the accused/petitioner was attempting to smuggle heroin abroad through highly deceitful means putting at risk his own life and his nation's dignity. This can be an exceptional circumstance to decline him bail. Additionally, the accused/petitioner has already been called to face trial by the learned trial Court and he is not entitled to bail at this stage, keeping in view the principle reiterated by the Honourable apex Court in the case reported as 2006 SCMR 1265(e).

6. The petition dismissed. H.B.T./40/P Bail refused.