Muhammad Zafar vs The State, etc
The petitioner, Muhammad Zafar, sought post-arrest bail in case FIR No. 333/2017 registered under Section 9(c) of the Control of Narcotic Substances Act, 1997, at Police Station Saddar Mailsi, following the alleged recovery of three kilograms of dry Bhang. The core legal question was whether the recovery of Bhang without specifying its parts attracted the penal provisions of the Control of Narcotic Substances Act, 1997, or the Prohibition (Enforcement of Hadd) Order, 1979, warranting further inquiry under Section 497(2), Code of Criminal Procedure 1898. The Lahore High Court held that the applicability of the statute required further inquiry at trial, noting that the petitioner was a first-time offender, had completed the investigation, and was no longer required by the police, while his continued incarceration would serve no useful purpose. The court laid down the principle that tentative assessment regarding the specific classification of recovered Bhang and the rule of consistency with regard to bail precedents established by the apex court entitled the accused to post-arrest bail.
- Whether recovery of unspecified parts of Bhang attracts the Control of Narcotic Substances Act, 1997 or the Prohibition (Enforcement of Hadd) Order, 1979?
- Does the rule of consistency in granting bail apply when the Supreme Court has dismissed leave to appeal in identical matters?
- Is a first offender entitled to post-arrest bail when the investigation is complete and the trial is not likely to conclude in the near future?
- Section 9(c), Control of Narcotic Substances Act 1997
- Section 2(d)(ii), Control of Narcotic Substances Act 1997
The petitioner namely Muhammad Zafar, after being unsuccessful to get his release on post-arrest bail from the Court of learned Additional Sessions Judge, Mailsi moved this petition in case FIR No.333/2017 dated 18.10.2017 offence under Section 9(c) of The Control of Narcotic Substances Act, 1997 ("CNSA, 1997") registered at Police Station Saddar Mailsi, District Vehari.
2. As per contents of FIR, precisely, on 18.10.2017 at about 02:10 p.m. on the basis of spy information, a raiding party was constituted to conduct raid at the informed place. The petitioner was apprehended and during search, from a bundle (Gattu) which he was lifting, dry Bhang weighing three kilogram was recovered.
3. Heard. Record perused.
4. According to the contents of the FIR, the petitioner was apprehended by the police on the basis of spy information and three kilogram Bhang was allegedly recovered from his possession. In the FIR, recovery of "bhang" without specifying parts thereof, from the petitioner has been alleged. Therefore, in the light of the law laid down in the cases titled "Fazeelat Bibi Vs. The State" (2007 YLR 3021 ), "Ghulam Hussain Vs. State & another" (PLJ 2015 Cr.C (Lahore) 167 (DB) and "Ali Asghar Vs. The State and others" (2015 P.Cr.R.30 (Multan), it would be seen during the trial, whether the case against the petitioner falls within ambit of Section 2(d)(ii) of the CNSA, 1997, or under the Prohibition (Enforcement of Hadd) Order IV , 1979.
5. Furthermore, in another identical situation, this Court through order dated 9.6.2016, passed in Crl.Misc.No.919- B/2016, had admitted an accused to bail. The State, for its cancellation, had filed Crl. Petition No.999-L/2016 , before the Hon'ble Supreme Court of Pakistan, but refused on 25.01.2017. The view of this Court with respect to grant of bail in the matters of Bhang has further been elaborated by the August Supreme Court of Pakistan by dismissing the leave to appeal filed by the State against various bail granting orders of this Court in case titled "The State Vs. Muhammad Sarwar and others" (2017 SCMR 1993 ).
6. The petitioner is first offender having no criminal antecedents. He is behind the bars for the last about one month and investigation of the case is completed and person of the petitioner is no more required by the police for the purpose of further investigation. The petiti oner is still awaiting his trial, the conclusion of which is not in sight in near future, therefore, his further detention in jail would serve no useful purpose for the prosecution. Accordingly , this petition is allowed and petitioner namely Muhammad Zafar is admitted to post arrest bail on furnishing bail bond in the sum of Rs.2,00,000/- with one surety in the like amount to the satisfaction of the learned trial Court.
7. Needless to observe that the observations made hereinabove are only tentative in their nature and are strictly confined to the extent of grant of instant bail.