2026 PLP 599 (MLD)

Riazat Ali Sahar, J.

By way of this petition, petitioner Muhammad Ali son of Inayatullah Jagirani seeks post-arrest bail in Crime No.231 of 2025, registered at Police Station 'B' Section, District Khairpur for offence punishable under Sections 9(1), Sr. No.3(c) of the Sindh Control of Narcotic Substances Act, 2024 and 23(1)(a) of the Sindh Arms Act, 2013, for allegedly possessing 1530 grams of Charas.

2. Since facts of the prosecution case are already mentioned in the FIR as well as in the memo. of petition; therefore, there is no need to reproduce the same. Reliance is placed on the case of Muhammad Shakeel v. The State and others (PLD 2014 SC 458).

3. Learned counsel for the petitioner argued that the petitioner is innocent and has falsely been implicated in this case by the police and recovery of contraband material has been foisted upon him. He further contended that the recovery so affected from the petitioner i.e.1530 grams of Charas is the meager quantity besides the punishment for offence as provided under the Act is the imprisonment which may extend to fourteen years but shall not be less than nine years; hence, submits when the statue provides two punishments, then lesser one may be considered at bail stage. He further argued that by virtue of Section 17(2) of the Act (as amended), the police official was under obligation to record video of recovery proceedings but he failed. He, therefore, submits that case against the petitioner requires further enquiry; hence, by granting this petition, the petitioner may be directed to be released on bail.

4. Learned Law Officers, after going through Section 17 of the Act and its provisions, submit that petitioner is not previously convict even no CRO has been made available to show any similar case pending against him; therefore, they have no objection for grant of bail.

5. We have heard learned counsel for the petitioner as well as law officers and have gone through the material made available before us on record.

6. In view of the express bar contained in Section 35(1) of the Sindh Control of Narcotics Substances Act, 2024, the petitioner is left without any efficacious remedy before the ordinary criminal forums. Where a statutory prohibition effectively forecloses access to bail, the constitutional jurisdiction of this Court under Article 199 may be invoked to safeguard the petitioner's fundamental right to liberty, as enshrined in Articles 9 and 14 of the Constitution. For the sake of convenience section 35(1) of the Act, 2024 is reproduced as under:- "Notwithstanding anything contained in sections 496 and 497 of the Code, the bail shall not be granted to an accused person charged with an offence under this Act". Therefore, in view of the exceptional nature of the statutory restriction and the absence of any effective legal remedy, this petition is held to be maintainable. Reliance is placed on the judgment of the Honourable Supreme Court in case of Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607).

7. Allegedly, the petitioner has been nominated in the FIR, and recovery of 1530 grams of contraband substance, viz. Charas, is shown to have been effected from his possession. However, the punishment provided by law for the said offence is the imprisonment which may extend to fourteen years but shall not be less than nine years and it is settled that when the statue provides two punishments, then lesser one is to be considered at bail stage. Hence, the alleged offence with which the petitioner is charged does not fall within the ambit of prohibitory clause of Section 497, Cr.P.C, thus making bail the rule and jail the exception.

8. Furthermore, the non-association of private mashirs in such circumstances undermines the credibility of the prosecution case. Additionally, no video recording or photographic evidence of the recovery proceedings has been placed on record, despite the availability of technology and the statutory expectation of transparency under such circumstances. Reliance is placed on the cases of Muhammad Abid Hussain v. The State (2025 SCMR 721) and Zahid Sarfaraz Gill v. The State (2024 SCMR 934). It is a well-entrenched principle that in cases hinging solely on police testimony, the benefit of doubt must be afforded to the accused, even at the bail stage. Reliance is placed on the case of Muhammad Arshad v. The State (2022 SCMR 1555).

9. In the circumstances and in view of above legal as well as factual position of record the petitioner has succeeded to make out a good prima facie case for grant of bail. The case of petitioner is purely covered by Section 497(2), Cr.P.C. Accordingly, instant Petition was allowed by our short order dated 16.07.2025, whereby the petitioner Muhammad Ali Jagirani was ordered to be released on bail subject to his furnishing solvent surety in the sum of Rs.50,000/- (Fifty Thousand) and P.R bond in the like amount to the satisfaction of the trial Court /Judicial Magistrate-I, Khairpur. These are the reasons in support of our above short order.

10. Needless to mention here that the observations recorded hereinabove are tentative in nature and shall not, in any manner, prejudice or influence the trial Court during the adjudication of the case. JK/M-87/Sindh Petition allowed.