2000 PLP 855 (MLD)

The State‑‑‑‑Respondent Criminal Procedure Code (V of 1898)‑‑‑‑ ....S.497...Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3/4/26(2).. ;Control of Narcotic Substances Act (XXV of 1997), S.9(c)...Bail, grant of ...Co‑accused who had allegedly, handed over the narcotics to accused for sale had already been allowed bail by Sessions Court and rule of .consistency demanded the release of accused also on bail... Accused having been charged under the' different laws providing different punishments for the same offence, law prescribing lesser punishment would be taken into account for the purpose of bail ...Complainant Police Officer had acted as Investigating Officer as well as recovery witness in the case which was not permissible under any norm of jusitce. Chemical Examiner's Report, despite the lapse of over two months period, had not been received. Accused was admitted to bail in circumstances. " would not help him in view of the following authority:‑‑‑ (Peshawar) Before Mrs: Khalida Rachid and Abdur Rauf Lughmani, JJ Qimat Hassan ‑‑‑‑ Petitioner versus The State‑‑‑Respondent. (b) Criminal Procedure Code (V of 1898) ....S.497...Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3/4...Control of Narcotic Substances Act (XXV of 1997), Ss.9 & 21...Bail...Provisions of S.21 of the Control of Narcotic Substances Act, 1997 being directory and not mandatory in nature, seizure or search made by an official below the Rank of Sub -Inspector did not render the cognizable case totally illegal ...Police Officer was not prohibited under the law to be a complainant as well as an Investigating Officer as long as his action or his investigation did not result in a miscarriage of justice. Offence under Art.3 of the Prohibition (Enforcement of Hadd) Order; 1979 being punishable with imprisonment of five years, accused could not claim bail as of right. Allowing bail to accused in such heinous offences could amount to injustice in the society as there was always an apprehension of repetition of the offence. Non‑receipt of Chemical Examiner's Report in time had manifested the inefficiency on the part of the prosecution but in no way, an adverse inference could be drawn in favour of accused who was engaged in business of drug trafficking which had become a constant source of destruction for the humanity ...More strict law in the shape of Control of Narcotic Substances Act, 1997 having been enacted and enforced to control the spread and penetration of drugs in the society, bail was declined to accused in circumstances."

3. However, the case of the petitioner‑accused, being a lady and having a suckling child with her in the jail would, therefore, fall under the first proviso to section 497, Cr.P.C. I, therefore, admit her to bail.

4. If an authority is needed I am supported by the following two authorities:‑‑ (i) 1995 PCr.LJ 1200 (Peshawar) . Before Jawaid Nawaz Khan Gandapur, J. Yousaf Khan and another‑‑‑Petitioners versus The State and another‑‑‑Respondents, (b) Criminal Procedure Code (V of 1898)‑‑‑ ....S.497...Pena1 Code (XLV of 1860), S.302/34...Bail, grant of ...Sufficient evidence was not available on the file to show that accused had either instigated or incited her co‑accused in killing the deceased...Accused being a lady her case fell under first proviso of S.497, Cr.P.C:...Accused was admitted to bail in circumstances." (ii) 1989 Supreme Court Monthly Review 202 Present: Abdul Kadir Shaikh, S.A. Nusrat and Zaffar Hussain Mirza, JJ Mst. Zar Bano‑‑‑Petitioner versus The State‑‑‑Respondent Criminal Procedure Code (V of 1898) .... .....S.497...Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 4 & 16:..Bai1, grant of ...Accused a woman having a suckling child and her detention in jail detrimental to health of child ...Accused found in possession of contraband article in her house which was not a public place ....Offences committed by her bailable by virtue of Art. 16 of Prohibition Order, 1979...Valid case made out for grant of bail to accused ...Interim bail already granted to accused confirmed in circumstances. "

5. The petitioner shall be released forthwith, if not required in any other case, provided she furnishes bail bonds in the sum of Rs.1,00,000 (Rs. one lac) with two sureties, each in the like amount, to the satisfaction of the Additional Registrar/Deputy Registrar of this Court.

6. The Additional Registrar/Deputy Registrar shall see that the sureties are respectable persons, hail from the settled areas of District Kohat and have ,sufficient ‑property in their names. Attested copies of their property documents/identity cards shall be obtained and placed on file for record. H.B.T./508/P Bail granted.