PLJ 2024 Cr.C. (Note) 35
[Lahore High Court, Multan Bench]
Present: Muhammad Amjad Rafiq, J.
MUHAMMAD MANSHA--Petitioner
versus
STATE and another--Respondents
Crl. Misc. No. 7078-B of 2023, decided on 11.10.2023.
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(1)-3D--Control of Narcotic Substances (Amendment) Act,
2022--Quantity ranging from 1000 grams to 4999 grams of charas--Joint liability--1000 grams charas--Post arrest bail--Grant of--Through Control of Narcotic Substances (Amendment) Act, 2022, accused have become more vulnerable to law because minimum sentence has been prescribed as nine years for a quantity ranging from 1000 grams to 4999 grams of charas--Control of Narcotic Substances Act being Special Law authorizes police to become complainant as well as investigating officer--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--Lesser sentence for purpose of bail in an offence entailing alternate sentences is principle--Police attended different processes at site like search of accused, recovery of contraband, inspection, weight, separating samples, making them into sealed parcels, drafting of complaint and sending constable to police station; all processes were completed within 20 minutes--Another accused, namely Munir was also apprehended with petitioner at spot having possession of 5000 grams charas--1000 grams charas was recovered from petitioner--It is not a case of joint liability because 02 individuals were separately selling narcotics on different points and were not related to each other as well, on a police raid both were apprehended and case against them should have been registered separately but police has tagged both accused in one FIR--Liability to extent of 1000 grams charas shall be considered against petitioner--Petition is allowed. [Para 3, 4, 6 & 7] A, B, C, D & E
PLJ 2018 SC 812; 2012 SCMR 573; 2020 MLD 59 (Balochistan);
2020 PCr.LJ 31 (Sindh); 2019 PCr.LJ 472 (Islamabad); 2017 YLR 609 (Sindh); 2014 PCr.LJ 1464 (Balochistan); PLJ 2001 Cr.C (Lahore) 438 (DB) ref.
Khawaja Qaisar Butt, Advocate for Petitioner.
Mr. Tanveer Haider Buzdar, Assistant District Public Prosecutor State.
Date of hearing: 11.10.2023.
Order
Through this petition, petitioner seeks post arrest bail in case FIR No. 1326 dated 08.08.2023 registered under Section 9(1)-3D of the Control of Narcotic Substances Act, 1997 at Police Station Qutabpur, District Multan facing the allegation of recovery of 1000 grams charas. Hence, this case.
2. Heard. Record perused.
3. Learned counsel for the petitioner states that after amendment in the 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 vears 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, and
“Tehmina Daultana and others versus State” [PLJ 2001 Cr.C (Lahore) 438 (DB)]. Section 124-A, PPC provides two types of punishments, one for imprisonment for life and the other for imprisonment which may extend to 3 years. The second part of the punishment provided in Section 124-A, PPC, as mentioned above, does not fall within the prohibitory clause of Section 497, Cr.P.C. and ultimately it is for the trial Court to form an opinion after considering the entire material to be brought on record in evidence by the prosecution whether in the circumstances it would be a case for punishment of three years or life and at the bail stage this Court cannot determine that the petitioners are most probably going to be awarded the sentence of life imprisonment and not upto 3 years as provided in law.
5. In the case in hand, the petitioner was charged for having possession of 1000 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 the petitioner was apprehended on 09.08.2023 at 09:15 a.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 20 minutes as the FIR stood registered at 09:35 a.m.; such pleading are reflected against the actual recovery and cast a doubt of plantation of narcotic upon the accused/petitioner.
7. It is not mere the quantity rather circumstances also Warrant interference by this Court. Learned Assistant District Public Prosecutor opposed the bail on the ground that it was a case of joint liability as another accused, namely, Munir was also apprehended with the petitioner at the spot having possession of 5000 grams charas. Learned counsel for the petitioner states that 1000, grams charas was recovered from the petitioner which fact is further reflected from the recovery memo. available in the police file. Further states that it is not a case of joint liability because 02 individuals were separately selling narcotics on different points and were not related to each other as well, therefore, on a police raid both were apprehended and the case against them should have been registered separately but police has tagged both the accused in one FIR, therefore, liability to the extent of 1000 grams charas shall be considered against the petitioner. The petitioner does not maintain criminal history and is behind the bars since 09.08.2023 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).
8. 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
0 Comments