SHER MUHAMMAD alias SHERA vs STATE
This matter concerns a bail application filed by the petitioner, Sher Muhammad alias Shera, who was charged under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979, following the alleged recovery of 23 grams of heroin from his possession. The petitioner's previous bail applications were rejected by the Judicial Magistrate and the Additional Sessions Judge. The core legal question was whether the petitioner was entitled to the concession of bail given the quantity of the contraband recovered and the applicable sentencing regime. The Court held that the quantity of heroin recovered was negligible and that the offense charged did not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898. Furthermore, the Court noted that the Control of Narcotic Substances Act, 1997, holds overriding effect. Consequently, the Court granted bail, emphasizing that the petitioner had been incarcerated since his arrest without the conclusion of his trial. The Court directed the trial to be expedited and prioritized by the Magistrate.
- Does the recovery of a small quantity of heroin fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- Does the Control of Narcotic Substances Act 1997 have an overriding effect on other existing laws regarding narcotics offenses?
- Is a petitioner entitled to bail when the maximum sentence for the charged offense is five years and the trial has not concluded?
- Article 3, Prohibition (Enforcement of Hadd) Order 1979
- Section 76, Control of Narcotic Substances Act 1997
- Section 497, Code of Criminal Procedure 1898
The, petitioner has been charged under the provisions of Article 3 of Prohibition (Enforcement of Hadd) Order, 1979 by Police Station Cantt: D.I.Khan vide FIR No, 471 dated 28.9.2007.
2. The allegations; in the FIR are that Fazal Rahim Khan ASI alongwith police officials was on routine Gasht. When be reached the place of occurrence, he found a person in dubious condition. On inquiry, the person described his name to be Sher Muhammad alias Shera son of Khuda Bakhsh, Caste Ral, resident of Muryali, Tehsil and District D.I.Khan. Under the suspicion the person was searched and from the right side of his pocket an envelope was recovered which contained heroin.
On weighment, it was found to be 23 grams. The said ASI then drafted murasila which was incorporated in FIR No, 4 i 1 referred to above.
3. The petitioner submitted an application for his release on bail to the Judicial Magistrate who, vide his order dated 04.10.2007, rejected the bail application of the petitioner. The petitioner then moved an application to the Sessions Judge requesting for bail in the aforesaid case which came up for hearing before Muhammad Naseem, Additional Sessions Judge-II D.I.Khan. The learned Additional Sessions Judge also refused bail to the petitioner vide his order dated 10.10.2007 and hence, the present bail application.
4. The heroin recovered from the personal search of the petitioner is of negligible quantity. Article 3 under which the petitioner has been charged carries a maximum sentence of five years. The law in the field is Control of Narcotic Substances Act, 1997 and under Section 76 of the Act ibid, it has got overriding effect on all the existing laws. Even if the provisions of this Act are applied, the case of the petitioner does not come within the prohibitory clause contained under Section 497 Cr. P.C. The petitioner is in jail since his arrest i,e, 28.9.2007 and so far his case has not been decided.
5. In view of the facts and circumstances of the case, I accept the bail application of the petitioner namely Sher Muhammad alias Shera son of Khuda Bakhsh, Caste Ral, resident of Muryali, Tehsil and. District D.I.Khan presently lodged in Central Prison, D.I. Khan, provided he furnishes bail bonds in the sum of Rs, 50,000/- (Rupees fifty thousands) with two sureties and a personal recognizance in the like amount to the satisfaction of Illaqa/Duty Judicial Magistrate.
6. Mr. Salimullah Khan Advocate has also submitted an application being Cr. Misc. No, 01/2008 in which it has been requested that the record of the case has been annexed with this bail application, so, the Cr. Misc. is accepted, the record of the trial Court be sent to the Judicial Magistrate as expeditiously as possible and the learned Magistrate is directed to decide this case on priority basis.