KHALID HUSSAIN alias KALA vs THE STATE
This matter concerns a petition for post-arrest bail filed by Khalid Hussain alias Kala, who was charged under Section 9(b) of the Control of Narcotic Substances Act, 1997, following the alleged recovery of 835 grams of Charas. The core legal question was whether the petitioner was entitled to bail given the nature of the recovery and the statutory punishment prescribed. The petitioner argued that he was falsely implicated, no independent witnesses were present during the recovery, and the offence did not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure, 1898. The State opposed the bail, citing the petitioner's presence at the scene. The Court held that the absence of independent witnesses during recovery proceedings and the fact that the maximum punishment for the offence is seven years—placing it outside the prohibitory clause—rendered the case one of further inquiry. Consequently, the Court accepted the bail petition, establishing the principle that where an offence does not fall within the prohibitory clause and recovery lacks independent corroboration, the accused is entitled to bail pending trial.
- Does an offence under Section 9(b) of the Control of Narcotic Substances Act 1997 fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- Is the absence of independent private witnesses during recovery proceedings a valid ground for granting post-arrest bail?
- When does an offence qualify as a case of further inquiry for the purpose of bail under the Code of Criminal Procedure 1898?
- Section 9(b), Control of Narcotic Substances Act 1997
- Section 497, Code of Criminal Procedure 1898
ORDER
' FAZAL-E-MIRAN CHAUHAN, J.--- Khalid Hussain alias Kala, the petitioner, seeks post-arrest bail in case F.I.R. No,128, dated 23-4-2007, offence under section 9(b) of the Control of Narcotic Substances Act, 1997, registered at Police Station Saddar Chichawatni, District Sahiwal for the allegation of recovery of Charas weighing 835 grams along with an amount of Rs,250 from the possession of the petitioner hence this case.
2. Learned counsel for the petitioner states that the petitioner is innocent and has been falsely implicated in this case with mala fide intention and has no concern whatsoever with the alleged offence. The petitioner is behind the bars since his arrest and is no more required by the police.
There is no evidence regarding sale or purchase of Charas. The maximum punishment of the offence under section 9(b) (ibid) is seven years, which does not fall within the prohibitory clause.
Reliance is placed on Shah Nawaz Thaheem v. The State 2003 M LD 1236 (Karachi). There is no independent private witness of the alleged recovery, thus, the petitioner deserves the concession of bail.
3. Conversely, learned Additional Prosecutor-General for the State opposed the bail petition contending that the petitioner is specifically named in the F.I.R.; he was caught red-handed at the spot, therefore, he is not entitled to the concession of bail.
4. We have given the anxious consideration to the respective arguments advanced by learned counsel for the parties and perused the record. It transpires that although the petitioner is named in the F.I.R., but there is no evidence on record against the petitioner regarding sale or purchase of Charas. No independent private witness was associated by the police during the recovery proceedings, which makes the case of the petitioner one of further inquiry. The petitioner is behind the bars since his arrest and his further detention in the judicial lock-up would not serve any purpose. The maximum punishment of the offence is seven years, which does not fall within the prohibitory clause of section 497, Cr.P.C. And keeping in view the detention of the petitioner during the trial, in these circumstances, is not warranted.
5. For what has been dismissed above, this bail petition is accepted and the petitioner is admitted to bail subject to furnishing bail bonds in the sum of Rs,30,000 (Rupees thirty thousand only) with one surety in the like amount to the satisfaction of the learned trial Court.