1998 P Cr (PLP)

"51 . .... (1) Notwithstanding anything contained in sections 496 and 497 of the Criminal Procedure Code, 1898 (V of 1898), bail shall not be granted to an accused person charged with an offence under this Act or under any other law relating to narcotics where the offence is punishable with death. (2) .... In the case of other offences punishable under this Act, bail shall not be normally granted unless the Court is of the opinion that it is a fit case for the grant of bail and against the security of a substantial amount. " Section 51 is to be read alongwith section 9 which provides punishment for contravention of sections 6, 7 and

8. The same is also reproduced as under:-- "

9. Punishment for contravention of sections 6 7 and

8. Whoever contravenes the provisions of sections 6, 7 or 8 shall be punishable with:-- (a) imprisonment which may extend to two years or with fine or with both if the quantity of the narcotic drug psychotropic substance or controlled substance is one hundred grams or less; (b) imprisonment which may extend to seven years and shall also be liable to fine, if the quantity of the narcotic drug psychotropic substance or controlled substance exceeds one hundred grams but does not exceed one kilogram; (c) death or imprisonment for life or imprisonment for a term which may extend to fourteen years and shall also be liable to fine which may be upto one million rupees, if the quantity of narcotic drug psychotropic substance or controlled substance exceeds the limits specified in clause (b). Provided that if the quantity exceeds ten kilograms the punishment shall not be less than imprisonment for life. " While reading section 51(2) alongwith section 9(b) bail is not to be normally granted to an accused person who is involved in any offence prescribed by this Act. In view of the prohibition contained in the statute the Court has to be extremely cautious and careful while considering the question of bail to be granted to an accused person. According to the allegation it is alleged that Truck No.3377-PRG was raided and during the raid two kilograms of heroin was found. According to the allegation in the F.I.R. one kilogram of heroin belonged to the petitioner i.e. Muhammad Yaqoob and one kilogram belonged to Abdur Rehman. Consequently, case was registered against three persons namely Muhammad Yaqoob, Abdur Rehman and Muhammad Shafi. Muhammad Yaqoob was the driver and Muhammad Shafi was conductor of the truck. Muhammad Shafi has been admitted to bail. While considering the allegation contained in the F.I.R. concession of bail could not be extended to the petitioner. However, it has been argued by the learned counsel that investigation was conducted by two senior Police Officers namely Rana Qamar, D.S.P. Musakhel and Muhammad Yaqoob, D.S.P., C.I.A. Both the; officers observed that the petitioner was not involved in the commission of offence. He has only allowed lift to Abdur Rehman who is in fact owner of the heroin taken into possession. On the contrary Muhammad Yar, A.S.-I. present in Court submitted that although in two investigations the petitioner was held innocent yet another D.S.P. held all the three accused guilty meaning thereby that Muhammad Shafi was also found to be guilty by him.

2. I have gone through the Zimni and find that while submitting the challan the last Zimni was recorded by Zawar S.H.O. who took into account the entire record and the opinion recorded by the D.S.P. The petitioner has been placed in column No.2 meaning thereby that he has not been challaned. As regards Mr. Asghar D.S.P. he has drawn inference that all the accused were guilty due to the fact that why Abdur Rehman who was carrying heroin was permitted to board the truck of the petitioner. The learned counsel for the petitioner, however, explained that Abdur Rehman was sitting on the tool box. He was quite visible from outside. No attempt was made by Muhammad Yaqoob to hide Abdur Rehman in his truck.

3. It is true that offence under the Anti-Narcotic Substances Act, 1997 have been made non-bailable by section 51, yet offence which is though /a punishable under section 9, bail can be granted on finding that prima facie an accused person's involvement appears to be extremely doubtful. In the present I case the Police Officer as well as the S.-I. who submitted the challan have found the petitioner to be innocent. Although the opinion has been differed by Mr. Asghar Ali, D.S.P. yet the case against the petitioner becomes that of further enquiry, therefore, the possibility cannot be ruled out that the petitioner Muhammad Yaqoob was not a partner of Abdur Rehman and he may not be aware that Abdur Rehman was carrying anti-narcotic substance. He has been in the lock-up since 18-2-1997 but no progress whatsoever has been shown by the prosecution.

4. In view of these circumstances and the fact that the petitioner has been held to be innocent by the Investigating Agencies successively, this petition is allowed. The petitioner is admitted to bail on his furnishing bail bond in the sum C of Rs.1,00,000 (rupees one lac) with two sureties in the like amount to the satisfaction of the learned trial Court, Mianwali. Substantial security has been sought in view of section 51(2) of the Act. N.H.Q./M-420/L Bail allowed.