MUHAMMAD KASHIF vs STATE and another
The petitioner Muhammad Kashif sought post-arrest bail under Section 497 of the Code of Criminal Procedure 1898 in case FIR No. 74/11 registered under Section 9-C of the Control of Narcotic Substances Act 1997, alleging recovery of 01-kg of Charas. The core legal question was whether the petitioner was entitled to post-arrest bail where the recovered quantity fell under Section 9-B rather than Section 9-C, thus falling outside the prohibitory clause. The Lahore High Court held that since the recovered quantity of 01-kg of Charas fell under Section 9-B, which carries a punishment not exceeding seven years rigorous imprisonment and does not fall within the prohibitory clause of Section 497 Cr.P.C., the case was one where bail was the rule and refusal the exception. The Court observed malafide on the part of the police in wrongly invoking Section 9-C, noted the petitioner's clean criminal record, the delayed chemical examiner report, and the fact that the petitioner was no longer required for investigation. Consequently, the petition was allowed and bail was granted to the petitioner subject to furnishing surety bonds.
- Whether recovery of one kilogram of Charas falls under Section 9-B of the Control of Narcotic Substances Act 1997?
- 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 bail to be granted as a rule in offences not falling within the prohibitory clause when the accused has no previous criminal history?
- Section 497, Code of Criminal Procedure 1898
- Section 9-B, Control of Narcotic Substances Act 1997
- Section 9-C, Control of Narcotic Substances Act 1997
ORDER
Petitioner Muhammad Kashif has filed this petition u/S. 497, Cr.P.C. for grant of post arrest bail in case FIR No, 74/11 dated 10.01.2011 u/S. 9-C CNSA registered at Police Station City Burewala, District Vehari.
2. Briefly the prosecution case mentioned in the FIR is that 01-kg. Charas was recovered from the possession of the petitioner.
3. Learned counsel for the petitioner contends that as the quantity of narcotics has not exceeded from 01-kg., hence, the same at the most falls under Section 9-B of CNSA, which does not fall within the prohibitory clause of Section 497 Cr.P.C. Further contends that petitioner has no previous criminal history and is behind the bar and his person is not required by the police for the purpose of investigation; that Chemical Examiner Report has not been received so far by the prosecution.
4. On the other hand, learned Deputy Prosecutor General has opposed the bail application, but conceded that offence falls under Section 9-B of CNSA and police had wrongly mentioned the offence under Section 9-C of CNSA.
5. Heard. Record perused.
6. It is the prosecution own case that 01-kg. Charas was recovered from the possession of the petitioner. The said quantity does not exceed 01-kg and the same falls under Section 9-B of CNSA.
The mala fide of the police officer is apparent that he had chalked out the FIR under Section 9-C of CNSA. The offence under Section 9-B of CNSA is punishable with 07 years R.I. and the same does not fall within the prohibitory clause of Section 497 Cr.P.C. and in such like cases bail is a rule and refusal is an exception, as laid down in Tariq Bashir's case (PLD 1995 S.C. 34). The exceptional circumstances mentioned in the said case are not available in the present case. The petitioner got blotless career and there is no previous criminal history. The report of chemical examiner has not been received by the petitioner till now. The petitioner is behind the bar and his person is not required by the police for the purpose of investigation.
7. Consequently, this bail petition is, allowed and petitioner is enlarged on bail, subject to his furnishing bail bonds in the sum of Rs, 2,00,000/- (two lacs) with one surety in the like amount to the satisfaction of the learned trial Court.