MUHAMMAD ASHRAF, Versus STATE

The petitioner was arrested in case F.I.R. No.298, dated 12-10-1999 of Police Station Oghi registered under section 9 of Control of Narcotics Substance Act read with section 13, Arms Ordinance. This case was registered at the behest of Ejaz Ahmed, S.H.O., Police Station Oghi, who sent a Murasila for the registration of the case.

2. According to the F.I.R. the S.H.O. was on Gasht in Oghi Bazar when he received a spy information that in the house of one Muhammad Ashraf who is indulging and selling narcotics a huge quantity of Charas is lying. On this information he arranged a raiding party and raided the house of Muhammad Ashraf. During the search he found shopping bags beneath the bed of the accused-petitioner containing Charas and on recovery the same was found 1200 grams. A pistol of .30 bore was also found below his pillow.

3. The petitioner after having been failed in his efforts to get bail from the Courts below is now seeking bail from this Court by moving the instant application.

4. The learned counsel for the petitioner has contended that there are 2 laws dealing with the possession, trafficking and manufacturing etc. of the narcotics. The first one is the Prohibition (Enforcement of Hudood) Order IV of 1979 while the other is the Control of Narcotics Substances Act XXV Act, 1997. He has urged that though section 9 read with section 6 of the Control of Narcotic Substances Act deal with the possession and punishment for the same, yet reading of the preamble indicates that the object of the said Act is to "control the production, processing and trafficking of such drugs and substances" and in the instant case as the available record shows the petitioner was found in possession of the narcotics and not found indulging in production, processing and trafficking. Mere allegations of selling the narcotics is not sufficient to hold a person guilty of the same unless the same has been proved through a testing of fake purchaser and particularly when the sale proceeds have not been recovered. He has derived a conclusion that in the present case though not applied by the prosecution, yet the Prohibition Order, 1979 would be applicable and not the Control of Narcotic Substances Act, and the punishment for the possession of Charas which is covered under section 4 of the Prohibition Order is at the most 7 years. Even otherwise as per judgment of this Court with a particular reference to the case of Muhammad Afzal v. State 1988 PCr.LJ 955 the law which would be applicable in the instant case for the purpose of bail. is the Prohibition Order being carrying a little punishment for the same offence. He has also urged that the recovery has not been effected from the person of the petitioner but from the house where the other family members including the grown up children are residing and the petitioner cannot be fixed with the responsibilities of having the exclusive possession of the narcotics.

5. On the other hand the learned counsel appearing on behalf of the State has submitted that in view of the quantity so recovered the punishment provided is death sentence or imprisonment for life and in addition to the fact of prohibitory clause of section 497, Cr.P.C. it also comes within the ambit of section 51 of the Act laying complete bar bn the release of an accused on bail.

6. After hearing of the learned counsel for the petitioner as well as for the State and perusal of the record the arguments advanced by the learned counsel for the petitioner are having force. As far as the question of bar as contained in section 51 of the Act is concerned it was held by the Honourable Supreme Court in judgment of Gul Zaman v. State 1999 SCMR 1271 that despite the provision of section 51 of the Act section 561-A, Cr.P.C. and sections 496, 497 and 498 of the Cr.P.C. are still available in appropriate cases and in this respect it was observed:--

"As to the applicability of the provisions of Code of Criminal Procedure a reference may be made to section 47 of Act XXV of 1997, which provides that:--

'47 Application of the Code of Criminal Procedure. 1898 .---Except as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), hereinafter referred to as the Code (including provisions relating to confirmation of a death sentence), shall apply, to trials and appeals before a Special Court under this Act'. "

If the above provisions are read .conjunctively with section 51 of the Control of Narcotic Substances Act XXV of 1997, it is clear that applicability of sections 496, 497 and 498, Cr.P.C, is not totally barred in respect of the cases, under the ibid Act, but the only prohibition is on the grant of bail to a person accused of an offence punishable with death while in other cases under the said Act bail may be allowed in suitable cases. It would be worthwhile to point out that under. this law there is no prohibition on the suspension of sentence of a convict during the pendency of his appeal. If this is so, how can the intention of law, be, to deny the concession of bail to an undertrial prisoner merely on the basis of accusation in the F.I.R."

7. Thus, after having a reply to the objection raised by the learned State Counsel with regard to the provisions of section 51 and also in view of the quantity so recovered, application of section 4 of the Prohibition Order and the recovery not effected from the person of the petitioner and also not from the place which is in exclusive possession of the petitioner, which facts are still to be proved by the prosecution at the trial, the petitioner is held entitled to the grant of bail and consequently, he is allowed bail provided he furnishes bail bond in the sum of Rs. one lac (1,00,000) with two sureties each in the like amount to the satisfaction of Illaqa/Duty Magistrate.

N.H.Q./15/P Bail allowed.