REHMAT GHANI Versus State

ORDER

MALIK HAQ NAWAZ, J.--- The petitioner Rehmat Ghani son of Miser Khan has been booked by the local police of Police Station Ghakuch for keeping in his possession 1038 grams of charas vide FIR No.12/2017 dated 03.03.2017 under Articles 3/4, E.H.O., 1979.

2. The petitioner applied for bail in the Court of learned Sessions Judge Ghizer but remained unsuccessful to obtain bail and now he has come to this Court for the concession of bail.

3. The learned counsel for the petitioner submitted at bar that the offence under Article 3 of E.H.O., 1979 provides a sentence of 5 years, if an accused is arrested while selling or transporting narcotics, while Article 4 of E.H.O., 1979 relates to possession of narcotics and provides a punishment of only two years. The offences with which the petitioner is charged does not fall within the prohibitory clauses of section 497, Cr.P.C. The learned counsel for the petitioner relied on 2006 MLD 154, 2009 PCr.LJ 1089, 1999 PCr.LJ 924, 1987 PCr.LJ 750 and 1997 SCMR 974.

4. On the other hand the learned Dy. Advocate General, submitted that the petitioner is habitual offender as he was previously involved in an offence of similar nature and was allowed bail by the learned Sessions Judge Ghizer about 06 months before. The offences under Articles 3/4, E.H.O., 1979 are not bailable and the petitioner may not be admitted to bail, as he misused the concession of bail, by repeating the same offence.

5. As evident from the FIR and recovery memo, 1038 gram of charas was recovered from the possession of the petitioner on his pointation. Article 3 of E.H.O., 1979 provides 5 years sentence of R.I, while Articles 4 of E.H.O., 1979 provides 2 years sentence of R.I. Both the offences does not fall within the prohibitory clauses of section 497, Cr.P.C. When an offence does not fall within the prohibitory clauses of 497, Cr.P.C., grant of bail is a rule and refusal is an exception. Mere registration of an FIR earlier could not be made a reason to refuse bail to the petitioner, when the fate of earlier case is still pending adjudication.

6. In view of above the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs. 5,00,000/- (five lac) with two local sureties each in the like amount to the satisfaction of learned Sessions Judge Ghizer.

7. The instant petition is disposed of accordingly.

JK/168/GB Bail granted.