PLJ 2024 Cr.C. (Note) 40
[Lahore High Court, Multan Bench]
Present: Muhammad Amjad Rafiq, J.
ZOHAIB alias MAJID ALI--Petitioner
versus
STATE etc.--Respondents
Crl. Misc. No. 3741-B of 2023, decided on 12.9.2023.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Control of Narcotics Substances Act, (XXV of 1997), S. 9-C--Possession of 1440 grams charas--Post Arrest Bail--Grant of--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--His continuous detention for indefinite period would be unfair, in particular, when conclusion of trial in nor future is not in sight--This petition is allowed and the petitioner is admitted to bail. [Para 4 & 8] A & B
PLJ 2018 SC 812; 2012 SCMR 573; 2020 PCr.LJ 657 (Lahore); 2020 MLD 59 (Balochistan); 2020 PCr.LJ 31 (Sindh); 2019 PCr.LJ 472 (Islamabad); 2017 YLR 609 (Sindh); 2014 PCr.LJ 1464
(Balochistan); ref.
Khan Wajid Nawaz Khan Pathan, Advocate for Petitioner.
Mr. Muhammad Umar Farooq Khan, APG for State.
Date of hearing: 12.9.2023.
Order
Through this petition, petitioner has sought post arrest bail in case FIR No. 702 dated 10.10.2022 registered under Section 9(c) of The Control of Narcotic Substances Act, 1997 at Police Station Civil Lines, District Muzaffargarh for having possession of 1440 grams charas.
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 so 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 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.P.C.
“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 1440 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. From perusal of record, it has been found that no time in F.I.R. was mentioned as to the apprehension of petitioner.
7. Learned Additional Prosecutor General though states that the petitioner maintains criminal history of some criminal cases, however, criminal history is no handicap to extend the benefit of bail to the petitioner if the benefit otherwise spurs out from the record on the touchstone of further inquiry. Reliance is placed on judgment reported as “Jamal-Ud-Din alias Zubair Khan versus The State” (2012 SCMR 573).
8. Petitioner is behind the bars since 10.10.2022 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.
(K.Q.B.) Bail allowed
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