PLJ 2024 Cr.C. (Note) 179
[Lahore High Court, Lahore]
Present: Anwaarul Haq Pannun, J
VIKKI MASIH--Petitioner
versus
STATE, etc.--Respondents
Crl. Misc. No. 86078-B of 2023, decided on 8.1.2024.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Control of Narcotic Substances Act, (XXV of 1997),
S. 9(1)3(c)--Post-arrest bail, grant of--Allegation of--1460 grams charas was recovered from his possession--The culpability of petitioner would be determined by trial Court, after recording prosecution’s evidence-- As far as criminal history of petitioner in other cases is concerned, same is no handicap to extend benefit of bail to petitioner, if his case otherwise is fit for further inquiry--The petitioner is behind bars since his arrest and his further incarceration would not be lucrative to prosecution--The investigation is already complete--The argument of Prosecutor that judgment of Hon’ble Supreme Court may be given prospective effect being on week pedestal cannot be sustained.
[Para 4 & 5] B, C & D
2012 SCMR 573
Control of Narcotic Substances Act, 1997 (XXV of 1997)--
----S. 9(1)3(c)--Criminal Procedure Code, (V of 1898), S. 497--Under Section 9(1)(c) C.N.S Amendment Act, 2022, maximum sentence provided is 14 years but shall not less than nine years if quantity of charas extends from 1000 grams to 4999 grams, thus does not attract prohibitory clause of Section 497 Cr.P.C because for grant of bail, lesser sentence is to be considered at bail stage. [Para 4] A
2012 SCMR 573, 2020 PCr.LJ 657 ref.
Syed Afzal Shah Bokhari, Advocate for Petitioner.
Mr. Muhammad Akhlaq, DPG for State.
Date of Hearing: 8.1.2024.
Order
By means of instant petition, the petitioner has prayed for his release by way of grant of post-arrest bail in a case registered vide FIR No. 2420, dated 31.08.2023, offence under Section 9 (1)3(c) of the Control of Narcotic Substances Act, 1997, Amended Act, 2022 (herein after to be called as C.N.S Amendment Act, 2022), with Police Station Lorri Adda, Lahore.
2. Precisely the allegation against the petitioner is that on the aforesaid date, he was captured by the police contingents and on his personal search, 1460 grams Charas was allegedly recovered from his possession which was wrapped in a polythene shopping bag.
3. Heard. Record perused.
4. Under Section 9(1)(c) C.N.S Amendment Act, 2022, the maximum sentence provided is 14 years but shall not less than nine years if quantity of charas extends from 1000 grams to 4999 grams, thus does not attract the prohibitory clause of Section 497 Cr.P.C because for grant of bail, lesser sentence is to be considered at bail stage. Reliance in this regard is placed upon “Jamal-Ud-Din alias Zubair Khan versus The State” (2012 SCMR 573), “Arshad Nadeem and 2 others versus The State and another” [2020 PCr.LJ 657 Lahore Multan Bench)]. The culpability of the petitioner would be determined by learned trial Court, after recording prosecution’s evidence. Moreover, the Hon’ble Supreme Court of Pakistan vide order dated 22.11.2023 rendered in Criminal Petition No. 1192 of 2023 titled as “Zahid Sarfraz Gill vs. The State”, granted bail to accused from whom 1833 grams Charas was recovered wherein it has been observed as under:
“If the police and ANF were to use their mobile phone cameras to record and/or take photographs of the search, seizure and arrest, it would be useful evidence to establish the presence of the accused at the crime scene, the possession by the accused of the narcotic substances, the search and its seizure, it may also prevent false allegations being leveled against ANF/police that the narcotic substance was foisted upon them for some ulterior motives”.
5. As far as criminal history of the petitioner in other cases is concerned, the same is no handicap to extend the benefit of bail to the petitioner, if his case otherwise is fit for further inquiry. Reliance is placed on judgment reported as Jamal ud Din alias Zubair Khan vs. The State (2012 SCMR 573). The petitioner is behind the bars since his arrest and his further incarceration would not be lucrative to the prosecution. The investigation is already complete. The argument of learned Prosecutor that the judgment of Hon’ble Supreme Court may be given prospective effect being on week pedestal cannot be sustained. Resultantly, the petition in hand is allowed subject to furnishing bail bonds by the petitioner in the sum of Rs. 100,000/- (rupees one lac) with one surety in the like amount to the satisfaction of learned trial Court and he is admitted post arrest bail. The above observations are tentative in nature and would not be taken as conclusive.
(A.A.K.) Petition allowed
0 Comments