2022 M L D 1310
Possession of narcotics---Bail, grant of---Accused was a previous convict---Scope---Accused was alleged to have been found in possession of 510 grams of charas---Record showed that the accused-petitioner was convicted and was placed on probation for one year in terms of S.5 of the Probation of Offenders Ordinance, 1960---Another FIR was registered against him after the completion of the probation period---No allegation was levelled against accused-petitioner that he violated the terms of his bond while it was in force---No proceedings under S.7 of the Ordinance, 1960, were initiated against the accused-petitioner and he was never sentenced for the original offence---In such circumstances, accused-petitioner was entitled to the benefit of S.11(2) of the Ordinance, 1960, and the said conviction could not be pressed as a ground to refuse him bail in the present case---Application for pose-arrest bail was allowed, in circumstance.
Judgment
TARIQ SALEEM SHEIKH, J.---Through this application the Petitioner seeks post-arrest in case FIR No.577/2021 dated 26.12.2021 registered at Police Station Saddar Renala Khurd, District Okara, for an offence under section 9(b) of the Control of Narcotic Substances Act, 1997 (the "CNSA").
2. As per FIR, the prosecution case is that on 26.12.2021 at 9:05 p.m. the Complainant, Iqbal Hassan/TASI, was patrolling along with other police officials on Chochak Road in Chak No.4/1-RA when he noticed a man turning around on seeing them. This made him suspicious so he asked him to halt for checking. The man identified himself as Abid alias Chirri and his personal search led to the recovery of 510 grams charas. Possession of narcotics is an offence under the CNSA.
3. The learned counsel for the Petitioner contended that Iqbal Hassan/TASI had framed the Petitioner in this case in collusion with his colleagues to show their high-ups that they are efficient. According to him, no charas was recovered from his possession and the police had foisted it. The counsel further contended that the Petitioner was accused of an offence under section 9(b) of the CNSA which does not attract the bar of section 51 so this Court may consider his release on bail.
4. The learned Assistant District Public Prosecutor controverted the above contentions. She contended that the police had no motive to book the Petitioner in a false case. He had criminal history and was caught red-handed with narcotics on 26.12.2021.
5. Arguments heard. Record perused.
6. The Petitioner is accused of keeping 510 grams charas which constitutes an offence under section 9(b) of the CNSA and is punishable with imprisonment for a term that may extend to seven years and fine. Section 51 prohibits grant of bail to an accused charged with an offence under any law relating to narcotics where the offence is punishable with death. In view of the principle enumerated by the Hon'ble Supreme Court of Pakistan in Tariq Bashir and 5 others v. The State (PLD 1995 SC 34), bail is the rule and refusal an exception in cases which do not fall within that prohibition. According to the learned Law Officer, the Petitioner was previously convicted on a drugs charge in FIR No.519/2019 dated 13.12.2019 registered at Police Station Saddar Renala Khurd, District Okara, so he was disentitled to the concession of bail.
7. According to the available documents, the Petitioner pleaded guilty before the Judge, Special Court (CNS), in case FIR No.519/2020 whereupon, vide judgment dated 12.03.2020, he convicted and placed him on probation for one year in terms of section 5 of the Probation of Offenders Ordinance, 1960 (the "Ordinance"), inter alia subject to furnishing of surety in the sum of Rs.50,000/- and a bond for good behavior during the probation period. We have to see what is the effect of this circumstance.
8. Punishment has five recognized purposes: deterrence, incapacitation, rehabilitation, retribution and restitution. "Probation is based on the philosophy of advice, assist and befriend the offender. It is believed that a helping hand, not state prisons, is a more effective way to reform criminals and reduce crimes."1 Besides these philosophical underpinnings, a number of other factors favour probation as an alternative to imprisonment. First, the prisons are overcrowded and the cost of building and maintaining new ones burdens the economy. Secondly, probation keeps the first offenders away from core criminals and becoming a like breed. Thirdly, it allows the offender to work in the community and earn livelihood for himself and his family.
9. The term probation must be distinguished from parole. "Probation" is where the court, subject to the supervision of the Probation Officer and other stated conditions, releases a convict into the community instead of incarcerating him. In contrast, "parole" means the conditional release of a prisoner from jail before he has served his full sentence.
10. The Ordinance modifies and expands the provisions of sections 562, 563 and 564 of the Code of Criminal Procedure, 1898, which have since been repealed.2 Section 5 thereof provides that a court may, having regard to the circumstances, including the nature of the offence and the character of the offender, release the following persons on probation instead of sentencing them at once:
(a) any male person convicted of an offence not being an offence under Chapter VI or Chapter VII of the Pakistan Penal Code (Act XLV of 1860), or under sections 216A, 328, 382, 386, 387, 388, 389, 392, 393, 397, 398, 399, 401, 402, 455, or 458 of that Code, or an offence punishable with death or imprisonment for life, or
(b) any female person convicted of any offence other than an offence punishable with death.
11. The law is more lenient to the female offenders. They can be released on probation in any case except those punishable with death. However, the court must record reasons while making a probation order and the offender should enter into a bond, with or without sureties, inter alia to commit no offence and to keep good conduct during the period of the bond. The court may impose additional conditions with respect to residence, environment, abstention from intoxication or any other matter as it may deem necessary. It may vary the conditions of the bond by a subsequent order. During the probation period, which shall not be less than one year or more than three years, the offender remains under the supervision of a Probation Officer.
12. The words "instead of sentencing the person at once, make a probation order" in section 5 of the Ordinance clearly show that when the court proposes to release the offender on probation it should not nominate sentence after convicting him. In other words, there is conviction without a sentence. It is well settled that the order of probation is not rendered illegal by the mere fact that the court has nominated a sentence while convicting an accused.3
13. According to section 3 of the Ordinance, the above powers may be exercised by (i) the High Court; (ii) the Court of Sessions; (iii) a Magistrate of the 1st Class; and (iv) any other Magistrate especially empowered in this behalf. Further, the court may exercise these powers not only when it is hearing a case in its original jurisdiction but also at the appellate or revisional stage.
14. Section 7(1) of the Ordinance stipulates that if the court has reason to believe that the offender has violated any of the conditions of the bond furnished by him under section 5, it may summon him and his sureties or issue warrant for his arrest. Section 7(2) enjoins that when the offender appears or is brought before it, the court may remand him to judicial custody until the case is heard or admit him to bail. Section 7(3) ordains that if, after hearing the case, it is satisfied about his default, it may forthwith (a) sentence him for the original offence; or (b) impose a fine upon him not exceeding one thousand rupees and if the offender fails to pay it the court may sentence him for the original offence. Thus, if the offender violates the conditions of the bond, the court should give him a show cause notice and afford an opportunity of hearing. The sentence for the original offence, if any, can be handed down only after it. The procedure prescribed by section 7 is mandatory.
15. Section 11 of the Ordinance is germane to the present discourse as it sets out the effect of probation. Section 11(1) enjoins that the conviction of an offence regarding which the offender has been placed on probation shall not be reckoned as conviction for any purpose other than the proceedings in which the order is made and of any subsequent proceedings which may be taken against the offender under the Ordinance. Section 11(2) stipulates that such conviction shall, in any event, be disregarded for the purposes of any law which imposes any disqualification or disability upon convicted persons. In Inspector-General of Police Punjab, Lahore and others v. Mahmood Ikram (1998 SCMR 765) the Hon'ble Supreme Court of Pakistan observed:
"On considering the principle of law discussed above, we feel inclined to hold that by virtue of section 11(2) Probation of Offenders Ordinance, 1960, the offender gets an opportunity of rehabilitation in the society without stigma of conviction provided the offence is not repeated and terms of bond furnished by him for good conduct and peace are honoured till the stipulated period."
In Zulfiqar Abbas v. The State (2007 PCr.LJ 306) the Sindh High Court said:
"The reformation and rehabilitation of the offender is incomplete unless he can live a life free from stigma. The stigmatization is bound to occur to offender once a court convicts him. On the conviction, the chances of survival through earning are jeopardized largely. Section 11 of the Ordinance gives effect to this rehabilitative concern by removing the disqualification attached to the conviction of an offender who has been released under section 4 or section 5 of the Ordinance. This provision is of vital importance as it contributes significantly to the rehabilitation and reformation of the offender. The provision of section 11, however, makes it clear that its benefit cannot be extended to a person who after his release on probation subsequently sentenced for original offence".
16. Section 11 is a beneficial provision which must be given full effect. Hence, in Mumtaz Ali and others v. District Returning Officer and others (2008 SCMR 751) and Nasrullah and another v. Haji Usman Ghani and 5 others (2002 CLC 1925) the court held that the candidate, who was convicted earlier in life for a criminal offence but was released on probation and fully complied with its terms, could invoke section 11(2) of the Ordinance to duck a statutory embargo on the previous convicts to contest an election.
17. It is however important to point out that, notwithstanding section 11(2) of the Ordinance, the departmental authorities are not precluded from initiating action against a government servant for misconduct under the relevant Efficiency and Discipline Rules.4
18. Now, coming back to the case in hand, the Petitioner was convicted on 12.3.2020 in FIR No.519/2019 and was placed on probation for one year in terms of section 5 of the Ordinance. FIR No.577/2021 was registered against him on 26.12.2021, i.e. after the completion of the probation period. There is no allegation that he violated the terms of his bond while it was in force. More importantly, no proceedings under section 7 of the Ordinance were initiated against him and he was never sentenced for the original offence. In the circumstances, he is entitled to the benefit of section 11(2) of the Ordinance and the aforementioned conviction cannot be pressed as a ground to refuse him bail in the instant case.
19. In view of above, this application is allowed. The Petitioner is admitted to post-arrest bail subject to his furnishing bail bond in the sum of Rs.200,000/- (Rupees two hundred thousand) with two sureties in the like amount to the satisfaction of the learned trial court.
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