PLJ 2024 Cr.C. (Note) 3
[Lahore High Court, Lahore]
Present: Muhammad Amjad Rafiq, J.
YASIR ARFAT @ BARO--Appellant
versus
STATE and another--Respondents
Crl. Misc. No. 24289-B of 2023, deiced on 17.4.2023.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Control of Narcotic Substances Act, (XXV of 1997),
S. 9(1)(3)(c)--Bail after arrest, grant of--Recovery of 1120 grams of charas--The petitioner was charged for having possession of 1120 grams of Charas--Quantum of sentence for charas weighing 1000 upto 4999 grams would be same and in light of principles settled by Courts in cited judgments, lesser sentence would be considered which is nine years--The petitioner does not maintain criminal history who is behind bars since 08.3.2023 and his continuous detention for indefinite period would be unfair, in particular, when conclusion of trial in near future is not in sight. [Para 5 & 6] A & B
PLJ 2018 SC 812.
Rai Zamir-ul-Hassan Kharal, Advocate for Petitioner.
Mr. Tariq Siddique, Addl. Prosecutor General for State.
Date Hearing: 17.4.2023.
Order
Through this petition, petitioner has sought post arrest bail in case FIR No. 203 dated 08.3.2023 registered under Section 9(1) 3(c) of The Control of Narcotic Substances Act, 1997 at Police Station Saddar, Hafizabad.
2. Prosecution case is about recovery of 1120 grams of Charas from the possession of the petitioner.
3. Heard. Record perused.
4. The sentencing zone under the amended law provides maximum sentence 14 years not less than 09 years but the ceiling so provided extends from 1000 grams to 4999 grams of charas. On the basis of principle of proportionality, the quantity recovered from the petitioner does not attract prohibitory clause of Section 497, Cr.PC because 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 versus 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.LJ 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 1120 grams of Charas. As referred in above para-3 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. The petitioner does not maintain criminal history who is behind the bars since 08.3.2023 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).
7. 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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