1999 PLP 474 (MLD)

MUHAMMAD ROSHAN ESSANI, J.

The facts leading to present application for bail are that applicant/accused Aslam alias Ashraf Geskhori is facing trial under section 9 of Control of Narcotic Substances Ordinance in case No.2 of 1997 before Sessions Judge, Umerkot arising out of the F.I.R. No.89 of 1996, dated 26-12-1996 of Police Station Kunri District Umerkot. The brief facts of the prosecution case as disclosed in the F.I.R., lodged by the complainant S.I.P. Muhammad Rahim Rajar S.I.P. C.I.A. Centre Umerkot on behalf of State are verbatim as under:-- "Complaint is that I am posted at C.I.A. Centre Umerkot. Today as usual I alongwith, my staff consisting of A.S.I. Ashfaque Hussain, Head Constable Sharnsher Ali, Constable Muhammad Ashraf went for patrolling in Government vehicle driven by Constable Muhammad Usman vide entry No.8, dated 25-12-1996. We started at 1730 hours and while patrolling different places reached a place called Dhoro Mori near pucca road linking Kunri at about 200 hours, when we stopped one person at the Mori. When we reached near him, he finding a police vehicle tried to run towards Jungle. We stopped the vehicle and with our professional ability caught him. We enquired from him about his name and place of residence. He after showing some nervousness disclosed his name to be Aslam alias Ashraf and gave his address. He was arrested under section 54, Cr.P.C. and in presence of mashirs A.S.I. Ashfaque Hussain, Head Constable Shamsher Ali was searched. We found in a small bag of plastic 15 puris of Haroin which were concealed in his pocket. Currency note worth Rs.20 was found from his another pocket. We prepared necessary mashirnama. The heroin was weighed and it came to be 13 grams. We separated three grams for the purpose of Chemical Examination. On interrogation the accused confessed that he was addicted to heroin and was also engaged in sale of it. " Applicant/accused applied for bail before the trial Court but the same was declined by impugned order dated 7-10-1997. Mr. Hemraj learned counsel for applicant/accused has contended that the case is false and cooked up one; that there is non-compliance of section 103, Cr.P.C.; that the complainant S.I.P. Muhammad Rahim Rajar of C.I.A. Centre has investigated the case which is wrong in the eyes of law; that the applicant/accused is in custody since 25-12-1996; that the offence with which he is charged is not punishable with death, imprisonment for life or ten years therefore, applicant/accused is entitled to bail. Mr. Mukhtar Ahmed Khanzada, learned counsel for the State has frankly conceded to the grant of bail. We have examined the relevant provisions of Control of Narcotic Substances Act, 1997. Heroin is defined as "narcotic drug" under section 2 (s) of the said Act. Section 9 whereof provides punishment for the offences specified in Sections 6,7 or 8 which is two (2) years or with fine or with both when the quantity of Narcotic Drug (which includes heroin) psychtropic substance or controlled substance recovered is less than 100 grams. In case the quantity exceeds 100 grams but does not exceed 1 Kgs. then punishment extends to seven (7) years and the offender shall also be liable to fine. In a case where alleged recovery is more than 1 Kgs. then sentence of death or imprisonment for life or imprisonment for a term which may exceed to fourteen (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 (10) Kgs. the minimum punishment shall be imprisonment for life. In the circumstances, we are inclined to agree with the learned counsel that this is a fit case for the grant of bail. In the case of Tariq Bashir and 5 others v. The State, reported in PLD 1995 SC 34, Honourable 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 by the Honourable Supreme Court for refusal of bail in offences which are non- A bailable. (a) Where there is likelihood of abscondence of the accused; Where there is apprehension of the accused tampering with the prosecution evidence; (c) Where there is danger of the offence being repeated if the accused is released on bail; and (d) Where the accused is a previous convict In another case Mst. Fahmida v. The State, reported in 1997 SCMR 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 Norcotics Substance Ordinance, 1995. One of the grounds which found favour with the Honourable Supreme Court was the violation of mandatory provisions of section 103, Cr.P.C. In the present case, prima facie, recovery was not made in the presence of independent respectable persons of the locality. The maximum punishment provided for the alleged offence is two (2) years or with fine or with both which does not fall within the prohibitory clauses of section 497, Cr.P.C. prosecution has not alleged that applicant/accused will abscond or temper with prosecution, evidence. On the contrary, learned counsel for the State has conceded to the grant of bail, as stated hereinabove. The upshot of the above discussion is that the case of the applicant/accused requires further enquiry as contemplated under section 497 (2), Cr.P.C. By the short order dated 14-5-1998 we had granted bail to the applicant/accused and above are the detailed reasons of our short order mentioned herein. N.H.Q./A-230/K???????????????????????????????????????????????????????????????????????????????????????????? Bail granted