PLJ 2023 Cr.C. (Note) 280
[Lahore High Court, Multan Bench]
Present: Muhammad Amjad Rafiq, J.
WASEEM ABBAS--Appellant
versus
STATE etc.--Respondents
Crl. Misc. No. 5904-B of 2023, decided on 13.9.2023.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Control of Narcotic Substances Act, (XXV of 1997), Ss. 9(1)(3)(c)--Bail after arrest grant of--Recovery of charas--Possession of two pockets--Law is expected which can only be prevented if bail in such offences be liberally granted--Counsel submits that severity of sentence under amended law has been reduced in terms that maximum sentence is now fourteen years up to 4999 grams charas, whereas, earlier it was death and imprisonment for life if quantity exceeds one kilogram, therefore, by all intents and purposes, it would be presumed that law has been relaxed in term of maximum sentence, therefore, principles upon which ball petition was being dealt with under previous law are required to be relaxed in light of amended law--The sentencing zone under amended law provides, maximum sentence 14 years not less than 09 years but ceiling to provided extends from 1000 grams to 4999 grams of charas--For purpose of bail, lesser sentence is to be kept in mind in such like cases which could easily be registered out of respite on grudge of police--Considering lesser sentence for purpose of bail in an offence entailing alternate sentences is principle explained by Hon’ble Courts in plethora of judgments--In para-4 quantum of sentence for charas weighing 1000 upto 4999 grams would be same and in light of principles settled by Courts in above cited judgments, lesser sentence would be considered which is nine years--Petitioner is behind bars and his continuous detention for indefinite period would be unfair, in particular, when conclusion of trial in near future is not in sight. [Para 3, 4, 5 & 8] A, B, C & D
PLJ 2018 SC 812, 2012 SCMR 573, 2020 PCr.LJ 657.
Mr. Shaukat Ali Ghauri, Advocate for Petitioner.
Mr. Adnan Latif Sheikh, Deputy Prosecutor General for State.
Date of hearing: 13.9.2023.
Order
Through this petition, petitioner has sought post arrest bail in case FIR No. 535 dated 29.05.2023 registered under Section 9(1)3(c) of The Control of Narcotic Substances Act, 1997 at Police Station Qadirpur Raan District Multan for having possession of two packets of Charas weighing 1050 + 1030 grams, total 2080 grams.
2. Heard. Record perused.
3. Learned counsel for the petitioner contends that after amendment in law through the Control of Narcotic Substances (Amendment) Act, 2022, the accused have become more vulnerable to the law because the minimum sentence has been prescribed as nine years for a quantity ranging from 1000 grams to 4999 grams of charas which means that once an accused is booked under Section 9(c) of the Control of Narcotic Substances Act, 1997 due to any reason, he shall remain behind the bars for nine years if he is not granted bail or acquitted from the charge. Further states that the Control of Narcotic Substances Act being Special Law authorizes the police to become complainant as well as Investigating Officer, therefore, misuse of such Law is expected which can only be prevented if the bail in such offences be liberally granted. Learned counsel submits that severity of sentence under the amended law has been reduced in terms that maximum sentence is now fourteen years up to 4999 grams charas, whereas, earlier it was death and imprisonment for life if the quantity exceeds one kilogram, therefore, by all intents and purposes, it would be presumed that law has been relaxed in term of maximum sentence, therefore, the principles upon which bail petition was being dealt with under previous law are required to be relaxed in the light of amended law.
4. The sentencing zone under the amended law provides, maximum sentence 14 years not less than 09 years but the ceiling to provided extends from 1000 grams to 4999 grams of charas. For the purpose of bail, lesser sentence is to be kept in mind in such like cases which could easily be registered out of respite on grudge of police. Considering lesser sentence for the purpose of bail in an offence entailing alternate sentences is the principle explained by the Hon’ble Courts in plethora of judgments; some of which are referred as follows:-
“JAMAL-UD-DIN alias ZUBAIR KHAN versus THE STATE (2012 SCMR 573), Court while hearing petition for bail was not to keep in view the maximum sentence provided by statute but the one which was likely to be entailed in the facts and circumstances of the case.
“ARSHAD NADEEM and 2 others versus THE STATE and another” [2020 P.Cr.LJ 657 (Lahore Multan Bench)). Needless to mention here that for the limited purposes of bail, the lesser punishment provided for the offence is to be considered, which in the instant case is three years.
“RIZWAN versus THE STATE” [2020 MLD 59 (Balochistan)]. Even it is by now well settled that where two quantum of sentences are provided in the statute, for the purpose of bail, the lesser shall be considered, therefore, in the instant case the question of quantum of sentence would also fall within the purview of further inquiry.
“MUHAMMAD AKRAM versus THE STATE” [2020 P.Cr.LJ 31 (Sindh)]. When statute provides two punishments, lesser punishment is to be considered at bail stage.
“MUHAMMAD HAYHAT KHAN vras THE STATE and another” (2019 P.Cr.LJ 472 (Islamabad)]. Lesser punishment was to be taken into account for the purpose of bail.
“MUHAMMAD AMIN versus THE STATE” [2017 YLR 609 (Sindh)]. Court, while examining the Question of bail, had to consider the minimum aspect of the sentence provided in the Schedule of Cr.PC.
“MUSTAFA ALI versus THE STATE” (2014 P.Cr.L.J 1464 Balochistan)]. Bail has to be granted to the accused/applicant on the principle that when a statute provides two punishments then for the purpose of bail, the lesser one is considered.
5. In the case in hand, the petitioner was charged for having possession of 2080 grams of Charas As referred in above para-4 the quantum of sentence for charas weighing 1000 upto 4999 grams would be the same and in the light of principles settled by the Courts in above cited judgments, lesser sentence would be considered which is nine years.
6. Learned counsel for the petitioner states that petitioner was lifted from his house on 27.05.2023 two days before the registration of F.I.R., therefore, he filed an application before City Police Officer, Multan, for change of investigation and his contention was also supported with some forensic material in the shape of snaps, that was the reason investigation was ordered to be changed. From perusal of record, it has been found that the petitioner was apprehended at 5:00 p.m., police attended different processes at the site like search of accused, recovery of contraband, inspection, weight, separating samples, making them into sealed parcels, drafting of complaint and sending the constable to police station; all processes were completed within 15 minutes as the FIR stood registered at 5:15 p.m. rather police station was at a distance of 02 kilometers from the place of recovery; such paddings are reflected against the actual recovery and a doubt of plantation of narcotic upon the accused/petitioner.
7. Learned Deputy Prosecutor General states that after change of investigation vide case Diary No. 8 dated 06.09.2023 DIB opined that the facts of the case are suspicious, therefore, the petitioner has also made out a case for further inquiry.
8. Petitioner is behind the bars since 29.05.2023 and his continuous detention for indefinite period would be unfair, in particular, when conclusion of trial in near future is not in sight. Reliance is placed on case reported as “Saeed Ahmad versus State through P.G. Punjab and another” (PLJ 2018 SC 812).
9. For what has been discussed above, this petition is allowed and the petitioner is admitted to bail subject to furnishing bail bond in the sum of Rs. 1,00,000/-with one surety in the like amount to the satisfaction of learned trial Court.
(A.A.K.) Petition allowed
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