PLJ 2024 Cr.C. (Note) 172
[Lahore High Court, Multan Bench]
Present: Muhammad Amjad Rafiq, J.
versus
STATE and another--Respondents
Crl. Misc. No. 7664-B of 2022, decided on 24.11.2022.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497(2)--Control of Narcotic Substances Act, (XXV of 1997),
S. 9(c)--Bail after arrest, grant of--Further inquiry--Allegation of--Recovery of charas--In case in hand, petitioner was charged for having possession of 2120 grams of Charas lying in polythene bag in two different packets--As referred in above para-3 quantum of sentence for charas weighing 1000 upto 5000 grams would be same and in light of principles settled by apex Court in above cited judgments, lesser sentence would be considered which is nine years--Petitioner is behind bars since 17.09.2022--Story of prosecution has a shake because time of recovery was shown as 12:20 p.m., whereas all processes police attended at spot like apprehending accused, her search, recovery of contraband, its inspection, weight & separation of samples of contraband, making them into sealed parcels, final drafting of complaint and sending constable to police station--All such processes were completed within ten minutes as FIR stood registered at 12:30 p.m. despite fact, distance between place of recovery and police station is 01 kilometer, such paddings give a note of plantation of narcotic upon accused/petitioner--Criminal history is no handicap to extend benefit of bail to petitioner, if his case otherwise is fit for further inquiry--Bail allowed. [Para 4, 5, 6 & 7] B, C, D & E
Purpose of bail--
----The sentencing zone under amended law provides maximum sentence 14 years not less than 09 years but ceiling so provided extends from 1000 grams to 5000 grams of charas--On basis of principle of proportionality, quantity recovered from petitioner does not attract prohibitory clause of section 497 Cr.P.C. because 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--Considering lesser sentence for purpose of bail in an offence entailing alternate sentences is principle explained by Hon’ble Supreme Court of Pakistan in plethora of judgments. [Para 3] A
2012 SCMR 573
Mr. Muhammad Maalak Khan Langah, Advocate for Petitioner.
Ms. Asmat Parveen, DDPP for State.
Date of hearing: 24.11.2022.
Order
Through this petition, petitioner seeks post arrest bail in case FIR No. 659 dated 17.09.2022 registered under Section 9 (c) of The Control of Narcotic Substances Act, 1997 at Police Station City Mianchannu District Khanewal.
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 5000 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.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. 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 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.
4. In the case in hand, the petitioner was charged for having possession of 2120 grams of Charas lying in polythene bag in two different packets. As referred in above para-3 the quantum of sentence for charas weighing 1000 upto 5000 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 is behind the bars since 17.09.2022. From perusal of record, it has been found that story of the prosecution has a shake because the time of recovery was shown as 12:20 p.m., whereas all the processes police attended at the spot like apprehending the accused, her search, recovery of contraband, its inspection, weight and separation of samples of contraband, making them into sealed parcels, final drafting of complaint and sending the constable to police station. All such processes were completed within ten minutes as the FIR stood registered at 12:30 p.m. despite the fact, distance between the place of recovery and police station is 01 kilometer, such paddings give a note of plantation of narcotic upon the accused/petitioner.
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.P.C. 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.P.C., has held as under:
“Perusal of the aforesaid provision reveals the intent of the legislature disclosing pre-condition to establish the word “quilt” 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. Although, learned Assistant District Public Prosecutor opposed this petition by stating that petitioner maintains history of two cases, out of which one is of like nature, however, criminal history 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 versus The State” (2012 SCMR 573).
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.
(A.A.K.) Bail allowed
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