This post-arrest bail application was filed by the applicant in a case under Section 9(c) of the Control of Narcotic Substances Act, 1997, involving the recovery of 1,540 grams of Charas. The core legal questions pertained to whether the lack of independent witnesses despite prior spy information, along with the maximum sentence falling outside the prohibitory clause of Section 497 Cr.P.C., warranted the grant of bail. The High Court granted post-arrest bail, holding that the alleged recovery carried a maximum punishment of 4 years and 6 months pursuant to established sentencing guidelines, which did not attract the prohibitory clause of Section 497(1) Cr.P.C. The court observed that police failed to join independent witnesses despite prior information, all witnesses were police officials minimizing the risk of tampering, and bail cannot be withheld as a punishment prior to conviction. Consequently, the applicant made out a case for bail under Section 497(2) Cr.P.C.
' SALAHUDDIN PANHWAR, J.---Through instant application, applicant seeks post-arrest bail in Crime No.18/2013 registered at Police Station Kazi Ahmed for offence under section 9(c) of C.N.S. Act, 1997.
2. Precisely the facts of the case are that applicant was arrested by complainant on 28-1-2013 while they were on patrolling, during personal search of applicant, recovery of 1540 grams Charas was effected; after usual investigation applicant was sent up for trial.
3. Learned counsel for the applicant inter alia contends that instant case is false; there is admitted enmity of the applicant with police; though police officials were having spy information in spite of that, they did not join independent persons as mashirs; maximum sentence in view of dictum laid down in case of Ghulam Murtaza, reported in PLD 2009 Lahore 362 is four years, six months, which does not fall within the prohibitory clause of subsection (1) of section 497 Cr.P.C; this is a case of border line and in similar circumstances and on same analogy in various precedents, this Court has taken lenient view. In support of his contentions, he has relied upon the cases reported as:-
(i) Sohail alias Sang v. The State (2009 PCr.LJ 315).
(ii) Bahawal alias Naang v. The State (2011 PCr.LJ 1200).
(iii) Hakeem Jamali v. The State (2009 PCr.LJ 695).
(iv) Khair Muhammad alias Khairo v. The State (2012 YLR 2298).
(v) Asghar v. The State (2011 MLD 1890).
(vi) Noor Khan v. The State (2012 MLD 1542).
(vii) Shah Mahmood alias Shahu v. The State (2012 YLR 1403).
(viii) Ghulam Murtaza and another v. The State (PLD 2009 Lahore 362)
4. Conversely, learned A.P.G. While refuting the submissions of learned counsel for the applicant, opposed the grant of bail on the ground that alleged offence is crime against society, therefore, applicant is not entitled for post-arrest bail.
5. Heard counsel and perused the record.
6. After careful consideration of submissions raised by respective counsel and meticulous examination of available record, it is matter of record that alleged recovery of Charas is 1540 grams; in spite of spy information police has not attempted to join the independent persons as witnesses. Since it is settled proposition of law that police officials are good witness as others but simultaneously it is the duty of police officer when there is possibility of joining the independent persons as witness, in such eventuality they must take all efforts to join the independent witness, in case of failure they shall justify with explanation. In this regard, in the case of Nawaz v. The State, reported in 2004 YLR 118, it is held that:-- "Though private persons are not required to witness the recovery of Narcotics substance as provided under C.N.S. Act yet the place of recovery and the time of recovery has to be kept in view to prevent false implication of innocent people, looking to the general conduct of police. The maximum punishment provided for the offence is 7 years which does not fall within the prohibitory clause contained under section 497, Cr.P.C. The accused is behind bars since last four months.
Keeping in view the peculiar circumstances of the case we are inclined to grant bail to the applicant."
7. ' Besides, in case of Ghulam Murtaza (supra), it is held that:-- "It is conspicuously noticeable that the sentences provided for by the Control of Narcotic Substances Act, 1997 are prescribed with reference to quantity of the recovered contraband narcotic substance and not with reference to the kind or nature of the recovered contraband narcotic substance. Different kinds of contraband narcotic substances covered by the Control of Narcotic Substances Act, 1997 vary sharply in their harmful nature or dangerous effects as a huge quantity of one substance may be less harmful or dangerous than a small quantity of another substance. Thus, in many situations a sentencing approach based only upon quantity of the recovered substance may lead to unjust and oppressive results and to punishments which may be unduly cruel and harsh."
8. While keeping in view the above analogy, chart is provided, wherein quantum of sentence is prescribed according to nature of contraband narcotic substances. Thus in the instance, case according to said policy maximum punishment is as under: ' Charas Exceeding 1 Imprisonment: ' kilogram R.I. For 4 years 6 and Upto 2 months and kilograms Fine: Rs.20,000 or in default S.I.. For 5 months.
9. It is manifest that above referred punishment is not falling within the prohibitory clause of subsection (1) of section 497, Cr.P.C. And there is no record that applicant has remained involved in same nature of cases, all witnesses are police officials, therefore, there is no likelihood of tampering with the prosecution witnesses hence the applicant cannot be put behind the bars for an indefinite period. Moreover, it is settled proposition of law that bail cannot be withheld as punishment.
Reference can be made to the case of Tarique Bashir, reported in PLD 1995 SC 34.
10. Regarding the contention of learned A.P.G. There is no cavil that the cases of narcotics are the crime against society but accused who is facing trial, possesses the presumption of innocence unless convicted.
11. In view of above, in the given circumstances and keeping in view the proposition of law in referred precedents, applicant has succeeded to make out his case falling within the purview of subsection (2) of section 497, Cr.P.C, thus the applicant is entitled for bail. Consequently, he is admitted to bail subject to furnishing solvent surety in the sum of Rs.50,000 (Fifty thousand) and P.R. Bond in the like amount to the satisfaction of the trial Court.