MUHAMMAD ZAFAR vs The STATE and others
This criminal petition concerns a request for post-arrest bail by an accused charged under Section 9(c) of the Control of Narcotic Substances Act, 1997, following the recovery of three kilograms of 'Bhang'. The core legal question was whether the recovery of 'Bhang' constitutes an offence under the Control of Narcotic Substances Act, 1997, or the Prohibition (Enforcement of Hadd) Order, 1979, and whether the accused was entitled to bail given the circumstances. The Court held that the classification of the recovered substance required determination during trial. Relying on precedents where the Supreme Court of Pakistan dismissed appeals against bail-granting orders in similar 'Bhang' cases, the Court granted bail. The holding emphasizes that where the investigation is complete, the accused is a first-time offender, and the trial is not imminent, continued detention serves no useful purpose. The key principle laid down is that in cases involving the recovery of 'Bhang', where the specific legal classification of the substance remains subject to trial adjudication, the accused may be admitted to bail pending trial, particularly when the accused has no prior criminal record.
- Does the recovery of 'Bhang' necessarily fall under the Control of Narcotic Substances Act, 1997, or the Prohibition (Enforcement of Hadd) Order, 1979?
- Is an accused entitled to post-arrest bail when the investigation is complete and the trial is not likely to conclude in the near future?
- Does the absence of criminal antecedents justify the grant of bail in narcotic cases involving 'Bhang'?
- Section 9(c), Control of Narcotic Substances Act 1997
- Section 2(d)(ii), Control of Narcotic Substances Act 1997
- Prohibition (Enforcement of Hadd) Order 1979
ORDER
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 kilograms 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 kilograms 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 v. The State" (2007 YLR 3021), "Ghulam Hussain v. State and another" (PLJ 2015 Cr.0 (Lahore) 167 (DB) and "Ali AsRhar v. The State and others" 2016 M LD 621 (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 v. Muhammad Sarwar and others" (2017 SCM R 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 petitioner 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.
Cited by 1 case
- IRSHAD HUSSAIN vs STATE, etc PLJ 2019 Cr.C. 654