WAZIR vs THE STATE
This matter arises from a bail application filed by the applicant seeking pre-trial release in a criminal case involving the recovery of two kilograms of Charas and five kilograms of Bhang from his personal possession. The core legal question concerns whether the rule of consistency applies to grant bail to the applicant when co-accused possessing lesser quantities of narcotics were previously granted bail, and whether the prohibitory clause of the governing statute bars bail. The Sindh High Court held that the applicant is not entitled to bail because his case is distinguishable from the co-accused; while the co-accused fell under a lesser penal provision punishable with up to seven years imprisonment, the applicant's alleged recovery falls under a provision punishable with death, attracting the statutory bar against bail. The key principle laid down is that the rule of consistency is inapplicable where the quantity of contraband recovered from the applicant places his offense under a higher, non-bailable category of punishment compared to co-accused.
- Does the rule of consistency apply when an accused is charged with possessing a larger quantity of narcotics carrying a death sentence compared to co-accused possessing lesser quantities?
- Is an accused barred from bail under the Control of Narcotic Substances Act 1997 when the offense is punishable with death?
- Are co-accused possessing one kilogram of Charas similarly situated to an accused possessing two kilograms of Charas and five kilograms of Bhang for the purpose of bail?
- Section 9(b), Control of Narcotic Substances Act 1997
- Section 9(c), Control of Narcotic Substances Act 1997
- Section 51, Control of Narcotic Substances Act 1997
ORDER
1. The allegation against the present applicant is that two Kgs. of Charas and five Kgs. of Bhang were secured from his possession. During the said raid and search, from the possession of other accused namely Asif, Munir, Hussain Bux and Manzoor lesser quantity of Charas viz. 1 Kg. was secured from each accused. The learned counsel for the applicant has stated that co accused Asif, Munir, Hussain Bux and Manzoor were granted bail by this Court and the case of the present accused is similar to that of co-accused, therefore, on the rule of consistency of applicant is entitled for the concession of bail and that the story of prosecution is unbelievable.
2. On the other hand the learned Assistant Advocate-General has stated that the bail was granted to the co-accused, as their cases fall under section 9(b), Control of Narcotic Substances Act, 1997 but the case of the present accused falls under section 9(c) of the said Act and punishment of the said offence is death therefore he is not entitled for the concession of bail in view of provision of section 51 of the said Act.
3. We have given due consideration to the arguments advanced by the learned counsel and find that the case of co-accused is distinguishable from the case of the present applicant. The allegation against the present applicant is that two Kgs. of Charas and five Kgs. of Bhang were secured from his possession therefore, his case falls under section 9(c) of the Control of Narcotic Substances Act, 1997 which is punishable with death whereas from the possession of each 'of the remaining accused 1 Kg. of Charas was secured as such their case falls under section 9(b) of the said Act which is punishable with seven years. As such the rule of consistency will not be applicable in this case. Under section 51 of the said Act it is provided that no bail can be granted to an accused person where the offence is punishable with death. In the present case the punishment of the 9(c)
4. Control of Narcotic Substances Act, 1997 is death therefore the case of the applicant falls under the prohibitory clause of section 51 of the said Act. Hence he is not entitled for the concession of bail.
5. The application is dismissed.
Cited by 1 case
- MUHAMMAD SHAFIQUE vs The STATE 2016 P Cr. L J 1315