P L D 1993 Peshawar 77 (PLP)

Akhtar Munir for Petitioners. Abdur Rauf Gandapur for the State. Date of hearing: 2nd February, 1993. Petitioners are charged under Article 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 for having been found transporting 3750 kilograms of `charas' in a truck loaded with tomato crates over and above the contraband crates. Two of the petitioners are a driver and a conductor, respectively, and one of them is said to be the owner of the truck. They were apprehended on 17‑9‑1991. Their bail application was dismissed by this Court on 22‑2‑1992 with direction to the prosecution agency to put in challan in the Court at the earliest and that the trial should be finalised speedily. The challan was, however, put in Court on 13‑9‑1992 after about a year of the arrest of the accused in the case.

2. Petitioners filed an application for bail on 10‑11‑1992 under the third proviso to subsection (1) of section 497, Cr.P.C. Their bail application was dismissed vide order dated 5‑12‑1992 dubbing them as hardened and desperate criminals because of the way and manner they had committed the offence of transporting such a big quantity of narcotic in a truck from tribal area to settled area.

3. Learned counsel for the petitioners argued that at the most the petitioners' case would fall under Article 3 prescribing punishment of 5 years' imprisonment, whipping and fine and would not be covered by the prohibitory clause contained in subsection (1) of section 497, Cr.P.C. He further contended that Ordinance NoXV of 1992 was promulgated on 16‑11‑1992 vide the third and fourth provisos to subsection (1) of section 497, Cr.P.C. were omitted, while the petitioners had completed their one year in custody without conclusion of trial, rather in the instant case without submission of challan in the Court, much before the promulgation of the Ordinance. He contended that under section 6 of the General Clauses Act there has not been made any distinction between the procedural law and a substantive law and it is laid down therein that if any Central Act has repealed any enactment in existence then the repeal shall not affect the previous operation of the old Act or affect any right and privilege accrued thereunder or affect any investigation, legal proceedings or remedy in respect of any such right or privilege and investigation, legal proceedings or remedy may be instituted, continued or enforced under the old Act. He contended that the petitioners had earned a right, privilege and remedy of release on bail under the third proviso to subsection (1), of section 497, Cr.P.C. before the promulgation of Ordinance NOXV of 1992 and in the instant case he has also applied to the Court for availing the said remedy by an application dated 10‑11‑1992 prior to the promulgation of the Ordinance and that the learned Additional Sessions Judge was obliged to grant him a bail unless the fourth proviso was to stand in his way. It appears that the learned Additional Sessions Judge has also consciously dealt with the case under the third and fourth provisos and has refused a bail to the petitioners having dubbed them as desperate and hardened criminals. There has, however, not come forth evidence if the accused‑petitioners were desperate and hardened criminals and as far as the manner of transporting the huge quantity of `charas' in a truck is concerned the same would not prima facie render the accused‑petitioners as desperate or hardened criminals. The learned counsel for the State was asked if he could lay his hands on any material to dub the accused‑petitioners as desperate or hardened criminals and his reply was no. This Court would be otherwise slow to release the accused? petitioners on bail but for the statutory provisions contained in the third and fourth provisos to subsection (1) of section 497, Cr.P.C. (repealed but being in existence at the time of the bail application before Sessions Judge and that the present application is a continuation of the earlier bail application) and further that the directions of this Court have not been complied with in filing challan and last that the offence is not covered by the prohibitory clause contained in subsection (1) of section 497, Cr.P.C. Consequently, this Court would release the accused‑petitioners on bail in case they furnish bail bonds in the sum of Rs.1,00,000 with two sureties of the locals with sufficient means in the like amount each to the satisfaction of the Illaqa/Duty Magistrate. N.H.Q/1442/P???????????????????????????????????????????????????????????????????????????????????????????????? Bail allowed.