ISRARUDDIN vs THE STATE
This matter arises from a criminal petition for post-arrest bail filed by the accused-petitioner, Israruddin, who was charged under an FIR for the alleged possession of two kilograms of Charas. The core legal question before the court was whether the petitioner was entitled to the concession of bail given the nature and quantity of the recovered narcotic substance and the delay in the commencement of the trial. The Peshawar High Court accepted the petition and held that the petitioner was entitled to bail, noting that he had already been detained for about two months without trial, that the challan had not yet been formally submitted to the court despite being signed, and that there was no apprehension of the petitioner tampering with evidence or absconding. The court laid down the principle that the quantum of punishment is a matter to be determined at the conclusion of the trial upon the recording of evidence rather than at the bail stage, and that pre-trial incarceration without progress in the trial warrants the grant of bail where the statutory prohibitory clause does not strictly apply or where further inquiry is made out.
- Whether the quantum of punishment can be considered at the bail stage under the Control of Narcotic Substances Act, 1997?
- Does the mere signing of a challan form amount to the submission of a report under section 173 of the Code of Criminal Procedure, 1898?
- Is an accused person entitled to post-arrest bail after remaining behind bars for two months without the commencement of trial for possessing two kilograms of Charas?
- Section 9, Control of Narcotic Substances Act 1997
- Section 173, Code of Criminal Procedure 1898
' SALIM KHAN, J.---Vide F.I.R. No,836 dated 30-8-2005, the accused-petitioner, Israruddin, has been charged for possession of two kilograms Charas within the limits of Police Station, Chamkani, Peshawar. I heard Mr. Hussain Ali, Advocate, for the petitioner as well as Mr. Muhammad Ayaz Khan, Deputy Advocate-General for the State, and perused the record.
2. The learned counsel for the petitioner contended that there were no efforts of test purchase in spite of the allegation that the accused-petitioner was selling Charas, that no small packet was recovered from the possession of the petitioner in spite of the above mentioned allegation, that the quantity of the allegedly recovered Charas is two kilograms, which is not a huge quantity, and it was not expected that maximum punishment would be granted tb the accused-petitioner under section 9 of the Control of Narcotic Substances Act, 1997, in the circumstances of this case. He relied upon Criminal Miscellaneous B.A. No,1 of 2003 decided on 17-1-2003 and PLD 1982 Peshawar 128 in support of his arguments.
3. The learned D.A.G. Contended that the offence was a heinous one which adversely affected the society, that complete challan was already prepared, and the trial of the accused-petitioner was expected to be concluded very soon.
4. The occurrence in this case took place on 30-8-2005, and complete challan has been shown to had been signed on 3-9-2005, but has not been put in Court as yet. The mere signing of complete challan form is not the observance of the provisions of section 173, Cr.P.C., as regards the submission of interim or complete challan. The quantum of punishment, if any, is to be considered at the end of trial in the light of the evidence recorded by the trial Court, and not at the bail stage, the offence under section 9 of the Control of Narcotic Substances Act, 1997, adversely affects the society, but it is yet to be proved that the accused-petitioner was involved in adversely affecting the society. The accused-petitioner has already remained behind the bars for about two months without any trial. It is not shown on record that the petitioner may tamper with the prosecution evidence or abscond, if released on bail.
5. In these circumstances, I 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, reliable persons, and have sufficient financial means.