2008 PLP 678 (MLD)

AGHA RAFIQUE AHMED KHAN, J.

The applicant/accused Abid Hussain is facing trial in the Court of Sessions Judge, Karachi South for Crime No. 163 of 2007 registered at Police Station Chakiwara, Karachi under Articles 3/4 of Prohibition (Enforcement of Hadd) Order, 1979. As per contents of the F.I.R. on 31-7-2007 A.S.-I. Jawaid Iqbal of Chakiwara Police Station was busy in patrolling of the area when he received spy information that two men and one woman were engaged in selling heroin in the narrow lanes. A.S.-I. along with his subordinates reached at the spot and noticed two men and one woman selling contraband articles. On seeing the police party two culprits ran away but the present accused was apprehended and from his possession 50 grams of heroin were recovered. Bail application was moved in the Sessions Court which was rejected by learned Sessions Judge, Karachi South vide order, dated 27-11-2007. Mr. Ghulam Rasool Mangi has argued that two co-accused persons namely Muhammad Issa and Mst. Hasina have been granted bail by the learned Sessions Judge and further that although the A.S.-I. had prior information about the incident but he did not call any private person to act as mashir. He has also argued that as per F.I.R. there was no buyer of the contraband article at the time of arrest of the accused. He has also pointed out that the case is covered under section 9(b) of the Control of Narcotic Substances Act, 1997 which being the latest and more exhaustive law has got overriding effect. The Investigating Officer should have submitted the challan under section 9 of the C.N.S. Act, 1997. He has relied upon the cases reported in 2000 PCr.LJ 1222, 2001 YLR 1847, 2006 YLR 1132 and 2002 PCr.LJ

562. I have considered the points raised by the learned counsel for the applicant/accused and have gone through the above noted case-law. It has been held in 2000 PCr.LJ 1222 that the Control of Narcotic Substances Act, 1997 has got overriding effect over the Prohibition (Enforcement of Hadd) Order, 1979. It seems that in the present case section 9(b) of the C.N.S. Act, 1979 is attracted wherein the maximum punishment provided is seven years which does not fall within the prohibitory clause of section 497 Cr.P.C. Furthermore, under section 21 of the C.N.S. Act, 1997 A.S.-I. is not empowered to detain or search the accused as held in the case of Mumtaz Ali v. The State reported in 2001 YLR 1847. In the circumstances, I am of the opinion that the present applicant is entitled to the concession of bail. He is accordingly granted bail in the sum of Rs.1,00,000 (Rupees One Lac only) and P.R. Bond in the like amount to the satisfaction of the trial Court. H.B.T./A-6/K Bail granted.