PLJ 2024 Cr.C. (Note) 52
[Lahore High Court, Multan Bench]
Present: Muhammad Amjad Rafiq, J.
ASHIR NISAR--Petitioner
versus
STATE and another--Respondents
Crl. Misc. No. 8185-B of 2022, decided on 8.12.2022.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Control of Narcotic Substances Act, (XXV of 1997), S. 9(c)--Sentencing zone--Recovery of charass--Post arrest bail--Grant of--The sentencing zone under the amended law provides maximum sentence 14 years and not less. Than 09 years but the ceiling so provided extends from 1000 grams to 4999 grams of charas-The quantity recovered from the petitioner does not attract prohibitory clause of Section 497 of Cr.P.C. 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-Petitioner does not maintain the criminal history--It does not the quantity but circumstances as reflected above make the case of the petitioner that of further inquiry--Petitioner is admitted post arrest bail.
[Para 3, 5 & 6] A, B & C
2012 SCMR 573; 2020 PCr.LJ 657; 2020 MLD 59; 2020 PCr.LJ 31; 2019 PCr.LJ 472; 2017 YLR 609; 2014 PCr.LJ 1464 ref.
Khawaja Qaisar Butt, Advocate for Petitioner.
Mr . Khalid Ibn-e-Aziz, Special Prosecutor for ANF.
Date of hearing: 8.12.2022.
Order
Through this petition, petitioner seeks post arrest bail in case FIR No. 39 dated 07.10.2022 registered under Section 9(c) of The Control of Narcotic Substances Act, 1997 at Police Station ANF, District Multan facing the allegation of recovery of 1500 grams charas.
2. Heard. Record perused.
3. 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 Supreme Court of Pakistan 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 PCr.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 PCr.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.
4. In the case in hand, the petitioner was charged for having possession of 1500 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 apex Court in above cited judgments, lesser sentence would be considered which is nine years.
5. Petitioner does not maintain criminal history, According to the contents of FIR, petitioner was apprehended by the police at 07:45 p.m. and after completion of all the processes, the complaint was finally drafted at 09:00p.m. but FIR stood registered at 09:30 p.m. despite the fact that police station was at a distance of 10 Kilometers from the place of recovery. Such paddings give a note of plantation of recovery upon the petitioner. The petitioner is behind the bars since 07.10.2022 and his continuous detention for indefinite period would be unfair, in particular, when conclusion of trial is near future is not in sight.
6. It is not the quantity but circumstances as reflected above make the case of the petitioner that of further inquiry into his guilt within the ambit of sub-section (2) of Section 497, Cr.PC. The Hon’ble Supreme Court of Pakistan in the case reported as “Jahanzeb and Others versus State through A.G. Khyber Pakhtunkhwa Peshawar and another” (2021 SCMR 63), with reference to Section 497(2) Cr.PC, has held as under:-
“Perusal of the aforesaid provision reveals the intent of the legislature disclosing pre-condition to establish the word “guilt” against whom accusation is levelled has to be established on the basis of reasonable ground, however, if there exists any possibility to have a second view of the material available on the record then the case advanced against whom allegation is levelled is entitled for the relief in the spirit of Section 497(2), Cr.P.C.”
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.
(K.Q.B.) Petition allowed
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