IBRAHIM vs THE STATE

' SALIM KHAN, J.---The petitioner, Ibrahim, has been charged in F.I.R. No,828 dated 24-7-2005 of Police Station Gulbahar, Peshawar. It is mentioned in the F.I.R. That there was information that Saleem son of Mir Baz, brother of the accused-petitioner, was available in his house, that he was required to local police in case F.I.R. No,744 dated 3-7-2005 under section 9 of the Control of Narcotic Substances Act, 1997, read with section,13 of the Arms Ordinance, 1965 of Police Station Gulbahar, and, therefore, raid was conducted on his house, but he ran away, that contraband Charas was recovered from the Kothi of the present petitioner weighing two Kilograms in two packets. I heard, Mr. Arshad Hussain Yousufzai, Advocate for the petitioner as well as Miss Neelam A. Khan, Advocate for the State, and perused the record.

2. The learned counsel for the petitioner submitted that neither the accused-petitioner was present on the spot nor anything has been recovered from the personal possession, or at the pointation, of the accused-petitioner, that the police did not arrange private witnesses, although they had the chance to do so as they had gone to the scene of occurrence with preparedness due to alleged previous information, but they avoided the provisions of section 103, Cr.P.C. And section 21 of the Control of Narcotic Substances Act, 1997, for the purposes of search. It was further submitted that the police wanted to arrest the brother of the accused-petitioner in a case of narcotics, who was not arrested, and, therefore, the police concocted the case against the present petitioner. It was also argued that the accused-petitioner was not a previous convict, and it was not expected in the circumstances of this case that the maximum punishment would be awarded to the accused- petitioner. He relied on the judgment dated 23-9-2005 in Criminal Miscellaneous B.A. No,747 of 2005, 2003 PCr.LJ 1392; 2002 7Cr.LJ 1429 and 2000 PCr.LJ 1225 in support of his arguments.

3. The learned counsel for the State contended that the accused-petitioner remained absconder from 24-7-2005 to 21-9-2005 and has thus disentitled himself to the concession of bail. It was further submitted that contraband Charas was recovered from the room of residence of the accused-petitioner, and, therefore, he was not entitled to the grant of bail at this stage.

4. It is not necessary for refusal or grant of bail that the accused-petitioner must always be a previous convict, as it is the severity of an offence and not the previous conviction of an accused in the previous case which is basically counted. The concept of previous conviction advances the sense of severity of the offence due to habit of the accused. It is always for the trial Court to consider the quantum of punishment, and it cannot be properly opined at the bail stage whether maximum, minimum or otherwise punishment would be granted to the accused in case of his conviction, because such quantum is fixed on the basis of the evidence recorded at the time of trial. In this case, however, the exclusive possession of the accused-petitioner regarding the alleged recovery of contraband Charas, specially in the light of non-availability of the accused- petitioner at the time of raid, may be proved at the time of trial, but it cannot certainly be mentioned so at this stage.

5. I, therefore, order the release of the accused-petitioner on bail on his furnishing bail bond in the sum of Rs,50,000 (rupees fifty thousand only) with two sureties, each surety in the like amount, to the satisfaction of the learned Judge of the trial Court, who shall ensure that the sureties are local and reliable persons, who have sufficient financial means.