1999 PLP 1496 (MLD)

MUHAMMAD NASIM CHAUDHRY, J.--On 6-4-1997 a raiding Party under the supervision of Col. Muhammad Younas J.D. Anti-Narcotic Force which included Ijaz Hassan D.D., Ahmad Jaleel Sub-Inspector, Raja Khalid Mahmood Sub-Inspector, Dilawar Khan Sub-Inspector, Miss Nighat Tehseen Lady Assistant and others went to Dari Bhattian, Mauza Pind Nali Wala, Tehsil Nanakna Sahib, District Sheikhupura as they had received the secret information that a female made sale of heroin. They reached the appointed place and made the arrangement for raid. After sometime a female is said to have come out of the village in a suspicious condition who was stopped. Her person was searched by Miss Nighat Tehseen Lady Assistant. The heroin was recovered from the pocket of her Shalwar which was weighed and found to be fifty grams. She was none else than Mst. Zohra wife of Abdul Qayyum (petitioner-accused). F.I.R. No .14 dated 6-4-1997 was registered at Police Station A. N. F. under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 and under Article 9(b) of the Control of Narcotic Substances Ordinance, 1997. Mst. Zohra was arrested there and then on 6-4-1997. Her bail plea was rejected by the Special Court, Anti-Narcotic, Lahore on 1-7-1997 in view of amendment effected in section 47 of the Control of Narcotic Substances Ordinance wherein it was included that bail shall not be granted to an accused charged with an offence under the said Ordinance or any other law relating to narcotics. Feeling aggrieved Mst. Zohra has filed this petition before this Court for her admission to bail.

2. None has appeared on behalf of the State. However, we proceed to dispose of this application. Learned counsel for the petitioner referred to Article 9 (a) of the Anti-Narcotic Substances Act, 1997 according to which the maximum imprisonment for violation of Articles 6, 7 or 8 of the aforesaid Act would extend to two years or with fine or with both, if the quantity of the narcotic substance is 100 grams or less. He also referred to section 51 of the Anti-Narcotic Substances Act, 1997 according to which the bail may be granted for an offence of the instant nature which is not punishable with death. He argued that since the offence is bailable the petitioner is entitled to be admitted to bail as of right as contemplated under section 496 of the Criminal Procedure.

3. First of all we would express that in order dated 1-7-1997 passed by the subordinate Court instead of section 52 of the Control of Narcotic Substances Ordinance whereby the bail could not be granted, section 47 of the aforesaid Ordinance seems to have been incorporated due to inadvertence or slip of pen. The fact of the matter is that at present for an offence of the instant nature which is not punishable with death the bail can be allowed by the Court under Article 51 (ibid). However, we hold the view that an application of every nature i.e. bail before arrest or after-arrest has to be first moved before and disposed of by the Court of original jurisdiction which in the instant case is the Special Court, Anti-Narcotics, Lahore. We find support from Note 2, rule 14 of Chapter X, High Court Rules and Orders Volume III in this regard which is reproduced as under:-- "Notes:--(1)

(2) Except in very special cases the Judges of the High Court decision to entertain applications for bail unless the Sessions Judge or the Court trying the case has already been applied to and has rejected application. Sessions Judges should conform to this practice. "

4. It is a case about the recovery of heroin from the petitioner-accused. It is not a political case wherein there is the allegation of political victimization nor it is a special matter falling under the aforesaid Note 2 of rule 14.

5. It is in very exceptional cases that the bail application is entertained, heard and disposed of by a Court of higher padestal. The bail application was disposed of on 1-7-1997 by the Special Court Anti-Narcotics when in any case of the instant nature the bail could not be granted. Now the matter can be considered, analysed, dissected and disposed of by the Court of original jurisdiction i.e. the Special Court, Anti Narcotics, Lahore.

6. We, therefore, dispose of this petition by holding that Mst. Zohra petitioner should first move the Special Court, Anti-Narcotics, Lahore for her admission to bail. In case she makes an application in the matter before the said learned Court the same shall be disposed of within a period of seven days from the date of its making after considering all the prons and cons and the legal aspects.

7. Copy dasti N.H.Q./Z-30/L Order accordingly.