1999 P Cr (PLP)

The petitioner who stands charged for having committed an offence under section 3/4 read with section 9 of Control of Narcotic Substances Act vide F.I.R. No.289 registered at Police Station Cantt. Bannu on 29‑8‑1998, was apprehended while carrying one Kg. of contraband Charas.

2. When arrested he applied for bail but his bail was rejected by the Special Judge, Narcotic, Bannu (Syed Musadiq Hussain Gilani). Hence this petition.

3. Mr. Fakhruddin Shah, Advocate learned counsel for the petitioner and Syed Saeed Hassan Sherazi, learned Assistant Advocate‑General for the State present and heard. Record of the case perused carefully.

4. The learned counsel for the petitioner, at the very outset, submitted that the Special Judge, Narcotic had not followed the judgment of this Court, recorded by his Lordship Mr. Justice Malik Hamid Saeed, in case Muhammad Afzal v. The State reported as 1998 PCr.LJ 955, wherein it was held:‑‑ "(a) Criminal Procedure Code (V of 1898)‑‑‑ ‑‑‑‑Ss. 497 & 103‑‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3/4‑‑‑Control of Narcotic Substance Ordinance (XXVII of 1997), S.9‑‑‑Bail, grant of‑‑‑Alleged recovery of Charas was effected from inside the coach which was carrying other passengers besides the driver and conductor of the vehicle, but none among the passengers, driver or conductor had been made witness to alleged recovery of Charas from accused‑‑‑Police Officer, no doubt, was a good witness as anyone from public, but when an accused was charged with an offence which involved capital punishment, it was incumbent upon police to associate public witnesses during investigation of the case‑‑‑Despite availability of public witnesses on the spot, they were ignored and were not made witnesses to the recovery so effected‑‑‑Accused was charged under Prohibition (Enforcement of Hadd) Order, 1979 and Control of Narcotic Substances Ordinance, 1997; both statutes which were in field as a valid law, almost dealt with same subiect and were enacted for the same purpose and object‑‑‑Both statutes were runnier Qarallel to each other and one could not substitute the other ‑‑‑Quantum of prescribed punishment in both the statutes being different, it was to be seen that which of the two would prevail‑‑‑Accused in case having been charged under two different statutes, having different punishments, statute carrying lesser punishment should be taken into consideration for the purpose of grant of bail to accused‑‑‑Accused was granted bail, in circumstances. (b) Criminal Procedure Code (V of 1898)‑-- ‑‑‑‑S. 497‑‑‑Bail, grant of‑‑‑Two parallel statutes in field dealing with same subject and having same object‑‑‑Punishment provided for the same offences different‑‑‑Statute carrying lesser punishment should be taken into consideration for the purpose of grant of bail.") The underlining is mine).

5. The counsel further stated that on this ground alone the petitioner is entitled to the grant of bail not as a matter of grace but as a matter of right.

6. I do not find myself in agreement with the findings of his Lordship Mr. Justice Hamid Saeed as mentioned above. In the case in hand the petitioner stands charged for having committed an offence which falls within the prohibitory clause of section 497, Cr.P.C. as he was caught red‑handed while he possessed the contraband Charas. This is quite clear from the recovery memo.

7. Accordingly I am of the view that reasonable grounds do exist for believing that he is connected with the commission of the offence which fact would disentitle him to get the concession of bail. This bail petition is, without any substance and is accordingly rejected.

8. Since the case in hand is of a simple nature, the prosecution is directed to submit complete challan against the petitioner in the trial Court on or before 1‑11‑1998 positively. The trial Court shall see that this case is disposed of within a period of three months failing which the petitioner shall be entitled to move the trial Court for bail on this very ground. N.H.Q./253/P Bail refused.