JAMALUDDIN alias ZUBAIR KHAN vs THE STATE

ORDER

' EJAZ AFZAL KHAN, J.---This petition for leave to appeal arises out of judgment dated 31-10-2011 of the Peshawar High Court, Peshawar whereby the petitioner was declined bail in case F.I.R. No,326 dated 9-10-2010 of Police Station Tal Hangu.

2. Learned counsel appearing on behalf of the petitioner contended that the incriminating substance was picked up from the path and not recovered from the personal possession of the petitioner; that even if it is presumed that it was recovered from his personal possession, he is not likely to be awarded maximum sentence provided by the Statute for four kilograms of charas and that he has been in jail ever since 6-9-2011, yet, commencement of his trial let alone its conclusion is not in sight; therefore, he deserves the concession of bail.

3. Learned counsel appearing on behalf of State argued that petitioner is a habitual offender as he has been charged in two other cases of similar nature, therefore he does not deserve concession of bail as it would encourage him to repeat the crime in future.

4. Without entering into the merits of the case, as the quantum of sentence has to be commensurate with the quantum of substance recovered, we doubt the petitioner can be awarded maximum sentence provided by the Statute. Needless to say that the Court while hearing, a petition for bail is not to keep in view the maximum sentence provided by the Statute but the one which is likely to be entailed in the facts and circumstances of the case. The fact that petitioner has been in jail for three months yet commencement of his trial let alone its conclusion is not in sight, would also tilt the scales of justice in favour of bail rather than jail.

5. The argument that the petitioner has been involved in two other cases of similar nature would not come in the way of grant of petition so along as there is nothing on the record to show that he has been convicted in any one of them. We, therefore, convert this petition into appeal and allow it.

The appellant shall be released on bail subject to furnishing bail bonds in the sum of Rs,200,000 (Rupees two lacs) with two sureties in the like amount to the satisfaction of the trial Court.