NASRULLAH Versus State
This matter arises from a bail petition filed by the petitioner, Nasrullah, seeking post-arrest bail in F.I.R. No. 113 of 2013 registered at Police Station City Skardu under sections 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979, after his previous bail application was dismissed by the Sessions Judge Skardu. The core legal question is whether the offences alleged against the petitioner fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898 and whether the offence under Section 4 of the Prohibition (Enforcement of Hadd) Order 1979 is bailable. The court held that no narcotics were found in the petitioner's vehicle to attract Section 3, but Section 4 was attracted, carrying a maximum punishment of two years which does not fall within the prohibitory clause of Section 497 Cr.P.C. and is bailable under Schedule II of the Code. The court laid down the principle that possession of narcotics attracting Section 4 of the Prohibition (Enforcement of Hadd) Order 1979 does not fall within the prohibitory clause and warrants the grant of bail.
- Does an offence under Section 4 of the Prohibition (Enforcement of Hadd) Order 1979 fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- Is an offence under Section 4 of the Prohibition (Enforcement of Hadd) Order 1979 bailable under the Code of Criminal Procedure 1898?
- When can a petitioner be granted post-arrest bail if charged under the Prohibition (Enforcement of Hadd) Order 1979?
- Section 3, Prohibition (Enforcement of Hadd) Order 1979
- Section 4, Prohibition (Enforcement of Hadd) Order 1979
- Section 497, Code of Criminal Procedure 1898
ORDER
MUHAMMAD ALAM, J.-- -Petitioner, who is involved for offences of section 3/4 of Prohibition (Enforcement of Hadd) Order (4) of 1979, booked through F.I.R. No.113/2013 of Police Station City Skardu, seeks his release on bail through this petition. Previously, petitioner filed similar petition before the learned Sessions Judge Skardu, who, through his order dated 9-10-2013, refused bail facility to the petitioner. Hence this petition.
2. Police concerned has charged petitioner for the offences of sections 3/4 of the above referred Order, Prohibition (Enforcement of Hadd) Order (4) of 1979, hereunder referred as Order. The sections 3 and 4 of the Order define and describe two different offences with different quantum of sentence. Section 3 of the Order carries maximum sentence of 5 years. The offences defined and described in section 3 of the Order are importing, exporting, transporting, manufacturing or processing of any narcotics. From plain perusal of F.I.R., it is evident that police concerned conducted search of vehicle of the petitioner, but found no any narcotics on the same, therefore, at least at this stage of the case, it is prima facie clear that petitioner was not doing any offence of section 3 of the Order. Section 4 of the Order defines and describes the offences of owning, possessing or keeping in custody any of narcotics. Ex facie perusal of contents of F.I.R. shows that petitioner had allegedly in his possession the narcotics recovered from the petitioner. So, at this stage of the case, Section 4 of the Order attracts which carries the maximum punishment of two years, therefore, does not fall within the prohibitory clause of section 497 Cr.P.C. Moreover, Schedule II to Cr.P.C. under heading OFFENCES AGAINST OTHER LAWS shows that in case Section 4 of the Order attracted to the case of petitioner, the offence is bailable.
3. I, therefore, grant this petition and direct for immediate release of petitioner on bail if not required in any other case. Anyhow, petitioner to furnish personal bail bonds in the sum of Rs 200,000, with one sound surety each in the like amount to the satisfaction of any Judicial Magistrate at Skardu. Petition allowed. File be consigned to record.
HBT/7/GB Bail granted.
Cited by 1 case
- Zulfiqar Ali vs The State 2020 SHC 552, 2022 PCRLJ 653