NASRULLAH KHAN Versus State

ORDER

SYED TAHIR ALI SHAH, J. --- This petition for leave to appeal is directed against order, dated 18-10-2006 returned by learned Chief Court, Northern Areas whereby post-bail application preferred by petitioner was declined.

2. Precisely stated the facts forming the background of the instant petition as recorded in F.I.R. No.56 of 2006 dated 26-6-2006 of Police Station Skardu City are that on 26-6-2006 one Muhammad Ali, A.S.-I., while on patrol found accused/petitioner in suspicious condition roaming in the Bazar area of Kushu Bagh Skardu. He held the accused then and there and carried the body search of the petitioner in presence of P.Ws. Syed Mujtaba and Ahmad Ali. During the personal search of the accused the A.S.-I. found a plastic bag containing "Dupatta Charas" having a golden mark, another plastic bag containing 13 Nos. of small packets containing Charas yet another plastic bag having 18 Nos. of small packets also containing Charas. Charas recovered from the person of the accused in 3 different plastic bags was taken into possession weighed and sealed after separating 10 gms. as sample. According to the F.I.R. the total Charas recovered from the accused, when weighed was round 250 gms. As per F.I.R. Charas recovered in different bags was weighed together and 10 gms. as sample was separated out of the total weight. The accused was accordingly arrested and booked under sections 3/4 of Prohibition (Enforcement of Hadd) Order, 1979.

3. Petitioner/accused filed bail application before the trial Magistrate but the same was dismissed and bail was declined on 13-7-2006. As a 2nd attempt accused submitted another bail application to the Sessions Judge, Skardu but the result was not different from the earlier one as the Court also declined to extend the bail facilities vide order, dated 4-9-2006. Lastly the accused/petitioner approached the learned Chief Court who on its turn rejected such bail application agreeing with the calculation arrived at by the two Courts below vide order, 18-10-2006. Hence this petition.

4. It is inter alia contended by Malik Haq Nawaz, Advocate, on behalf of the petitioner that bail cannot be withheld on the basis of registration of other cases against the accused as a measure of advance punishment. It was also contended with vehemence that quantity of Charas recovered (250g) from the accused brings the offence levelled against the accused, out of the ambit of prohibitory clause of section 497(1), Cr.P.C. He further contended that Courts below failed to appreciate the relevant law and procedure while declining the bail application.

5. Conversely, the learned Advocate-General has vehemently controverted the contentions agitated on behalf of the petitioner and supported the order impugned for the reasons enumerated therein by arguing that there are other narcotic cases pending trial against the accused which create apprehension of the offence being repeated in case the petitioner is released on bail. He relied on a reported case i.e. 1997 MLD 1065 (Lahore).

6. We have patiently heard the learned counsel and Advocate-General at length and record was also scrutinized.

7. Common question, in agreement of the Courts below rest on the point that bail was refused to the accused petitioner on the ground that similar cases are pending trial against the accused in the Court of law and extension of the facility of bail to the accused would amount to facilitate the accused to repeat the same offence which is harmful to the society at large. The Chief Court in addition to the above point held that the offence with which the accused is charged falls within the prohibitory clause of section 497(1), Cr.P.C. The learned Court further held that the accused has misused the concession of bail many times.

8. A cursory glance at the F.I.R. makes it clear that only 250 gms. of Charas was recovered from the accused during his personal search. However, later on, during further investigation as evident from the judgment of the Courts below, some more quantity of Charas was recovered from the accused on the clay of occurrence and the next clay. Thus, if it is taken as true, a quantity of 445 gms. of Charas in toto has been recovered from the accused. Section 4 of the Prohibition Order, 1979 dealing with the quantity of intoxicant and punishment thereof is reproduced:--

Section 4------------------------------------------------------------------

(2) ??????? Provided further that if the intoxicant in respect of which the offence is committed, is Heroin, Cocaine, raw opium or coca leaf and the quantity exceeds 10 gms. in the case of heroin or cocaine or 1 kg in the case of raw opium or coca leaf the offender shall be punishable with imprisonment for life or with imprisonment which is not less than 2 years and with whipping not exceeding 30 stripes and shall also be fined..

Apparently the entire quantity of Charas recovered from the accused through different recoveries falls short of the quantity specified in the related provision of law. Likewise punishment under section 3 of the Prohibition Order, 1979 a maximum punishment of 5 years and 30 stripes is provided. So by any strength of imagination the offences attributed to the accused do not fall within the prohibitory clause of section 497(1), Cr.P.C.

9. The next contention that bail should be withheld on the ground that other cases of the similar nature pending against the accused does also not seem well-founded. It is an admitted proposition of law that a person accused of an offence is innocent till he is convicted by a competent Court of law hence the denial of bait to the accused on this ground is also misconceived.

10. As far the point raised in above quoted authority reported in MLD 1997 is concerned, the facts in the instant case are altogether different to that case. The offence levelled against the accused was itself non-bailable bringing the same within the ambit of the prohibitory clause of section 497(1), Cr.P.C. Besides other points raised in the instant petition do not find place in the quoted reference. It is an admitted proposition that no authority binds a person or a Court the point of fact which almost in every case differs from each other.

11. The appealing point in the present case is that the Investigating Officer concerned has effected recoveries of alleged Charas during the personal search of the accused from 3 different plastic bags and separating the sample from the combined recovery of 250 gms. It is not clear whether Charas from each plastic bag was sent for chemical analysis or not. This point is to be determined during the trial in the Court.

12. Furthermore, the applicability of section 3 of Prohibition Order caused for further inquiry as prima facie no case of any attempt by the accused to sell Charas was made out as the allegation in the F.I.R. regarding sale of the intoxicant indicates a mere supposition in the absence of any proof to sell.

13. It appears to us that relevant provisions of law and procedure have not rightly been appreciated. Under the circumstances a case of further inquiry has apparently been made out.

14. In the light whatever discussed above the instant petition is converted into appeal and allowed. Appellant is granted bail subject to furnishing a bail bond of Rs.50,000 (fifty thousand) with two sureties in the like amount to the satisfaction of Judicial Magistrate, Skardu. These are the reasons for our short order dated 21-11-2006.

N.H.Q./7/Glt. ?????????????????????????????????????????????????????????????????????????????????????????????????? Bail allowed.