2005 PLP 3141 (YLR)

IJAZ-UL-HASSAN KHAN, J.

On 27-5-2005 at 2135 hours, Incharge Constable Naseeruddin Khan, Chowki City Tank, complainant in this case, was on `Gasht' at Tank Umer Adda, when he found a person roaming in suspicious condition. On inquiry he disclosed his name as Sadiq son of Muhammad Akbar. The personal search of the said person led to recovery of 51 grams of heroin from the pocket of his shirt. The heroin was taken into possession and the offender was formally arrested. A case was registered under Article 3/4 of the Prohibition (Enforcement of Hadd) Order (4 of 1979). The petitioner moved an application before Civil Judge/Judicial Magistrate Tank for his release on bail which was rejected by order dated 10-6-2005. The application of the petitioner for bail was also turned down by Sessions Judge Tank by his order dated 17-6-2005. The petitioner has moved this Court with the similar prayer and in support of the bail application Mr. Gohar Rehman Khattak, Advocate mainly contended that Article 3 of the Order (ibid) is not applicable whereas Article 4 is bailable and in view of the judgment of this Court reported as Nauroz Khan alias Tour v. The State 2000 PCr.LJ 1222, petitioner is entitled for the concession of bail. The learned counsel has also placed reliance on Dost Muhammad v. The State 1998 PCr.LJ 1227 Lahore, Rafaqat Ali v. The State 1999 PCr.LJ 924 and Iltaf Hussain v. The State 1999 PCr.LJ 1886 Lahore.

2. Mr. Obaidullah Anwar, A.A.-G. appearing on behalf of the State controverted and repudiated the contentions raised by learned counsel for the petitioner and attempted to argue that huge quantity of heroin has been recovered from personal possession of the petitioner and thus the concession of bail has been declined for valid reasons.

3. Be that as it may, the position is that the petitioner was arrested on 27-5-2005 and since then is in judicial lock-up and the final trial is not in sight. It is fact that if an offence is punishable under two different provisions of law, the law entailing lesser punishment is to be pressed into service. Whether Article 3 of Prohibition (Enforcement of Hadd) Order, 1979 is attracted in the present case can only be determined after the evidence is recorded. Prima facie the petitioner's case is covered under Article 4 of the Order ibid, as the petitioner was only found in possessions of 51 grams of heroin, which does not fall within the prohibitory clause of section 497, Cr.P.C. It is well-established principle of law that the benefit of doubt, if any, shall also go to the accused at bail stage. In the light of above discussion, I feel that a prima facie case for the grant of bail is made out. The application is accepted and the petitioner is allowed bail on furnishing bail bond in the sum of Rs.3,00,000 with two sureties each in the like amount to the satisfaction of Illaqa Judicial Magistrate. H.B.T./492/P Bail granted.