NASRULLAH Versus State
ORDER
MALIK HAQ NAWAZ, J.--- Nasrullah son of Rashtullah Khan resident of Eid Gah Colony Skardu was booked for the offences under section 9(b), C.N.S.A., 1997 vide FIR No. 102/2016 dated 27-11-2016 of Police Station City Skardu lodged on the complaint of SIP Ghulam Ali CIA Branch Skardu for having in his possession 130 grams of charas.
2. The petitioner moved 1st bail application in the Court of learned Sessions Judge Skardu, which was withdrawn by his learned counsel on 05-12-2016. The petitioner moved another bail application before the learned Sessions Judge, which was dismissed on the ground that the learned counsel for the petitioner concealed the facts of filing the first bail application and its subsequent withdrawal, with the further additional factor that the petitioner is a habitual offender and involved in many cases of similar nature.
3. Being aggrieved from the order of learned Sessions Judge Skardu, the petitioner filed post arrest bail application before this Court for concession of bail.
4. The learned counsel for the petitioner contended with vehemence that the case is false and fabricated as despite thickly populated area no private persons were cited as witnesses of recovery. The learned counsel further submitted that only ANF Police can register a case in narcotic cases and an SIP of CIA was not competent to register a case against the petitioner. The learned counsel further added that only a small quantity of Charas has been recovered from the petitioner and the case does not fall within prohibitory clause of section 497, Cr.P.C. and bail in such like cases is a rule while refusal is an exception. The petitioner deserves concession of bail.
5. The learned Advocate General opposed the petition with full force and contended that the petitioner is a habitual offender, who is involved in many cases of alike nature. Per learned Additional Advocate General, no ill will or any animosity has been alleged against the officials of CIA, which may have prompted them to involve the petitioner in such a heinous offence. The learned Additional Advocate General stated that the petitioner misused the concession of bail and a law violator cannot claim any relief from the Court of law.
6. Heard the parties and scanned the record with their valuable assistance.
7. The petitioner filed 1st bail application before the learned Special Judge Skardu, which was withdrawn on 05-12-2016 and filed a subsequent bail application before the learned trial Court which was dismissed on 22-12-2016. Needless to mention here that, simple withdrawal of bail application would not mean that, it was ever dealt with on merits and the grounds taken in the petition were considered. Such simple withdrawal would not be a bar to move a second bail application. As evident from the withdrawal order dated 05-12-2016 bail petition of the accused was not decided on merits, rather Court below found him disentitled for the concession of bail due to faulty conduct of his counsel, for not disclosing the facts of filing of an earlier bail application and its subsequent withdrawal, which in my opinion was just an inadvertent omission on the part of the learned counsel, which should have been taken lightly, as the earlier petition was not decided on merits. If the earlier bail application could have been decided on merits, the situation would have been different and non-disclosure would have been a professional misconduct, which is not the case of petitioner. However the petitioner is involved in cases of similar nature and a habitual offender. PLD 1995 SC 34 of Supreme Court of Pakistan has laid down certain red lines, which if available, the accused whose case does not fall within the prohibitory clause of section 497, Cr.P.C. could be refused bail. The 4 conditions are as under:-
(a) Where there is likelihood of abscondence of the accused;
(b) Where there is apprehension of the accused tampering with the prosecution evidence;
(c) Where there is danger of the offence being repeated if the accused is released on bail; and
(d) Where the accused is a previous convict.
8. As discussed supra the accused is involved in many cases of alike nature in the past and is a habitual offender. Whenever he was allowed bail, he repeated the similar offence and thus misused the concession of bail. Mere fact that an offence does not fall within the prohibitory clauses of section 497(1), Cr.P.C. does not mean that it has become a bailable offence. Bail is the discretion which always remains with the Court to consider, whether an accused of such an offence does or does not deserve the concession of bail and the norms for exercise of such discretion have now been settled by the superior Judiciary.
9. The result of above discussion is that the petitioner is not entitled for concession of bail, which is accordingly declined.
JK/9/GB Bail declined.