Mst. FAHMIDA vs The STATE
This petition for leave to appeal arose from the dismissal of a bail application by the Sindh High Court regarding a narcotics case. The petitioner, a female, was arrested for the alleged possession of 35 grams of heroin. The core legal question was whether the petitioner was entitled to bail, considering the pendency of prior criminal cases and the procedural validity of the recovery. The Supreme Court observed that the High Court had improperly denied bail based solely on the pendency of previous cases, noting that the petitioner had been acquitted in three of those cases and was on bail in the others. Furthermore, the Court highlighted a violation of Section 103 of the Code of Criminal Procedure 1898, as no respectable inhabitants of the locality were associated with the search proceedings. Given the small quantity of the contraband, the maximum potential sentence, and the petitioner's gender, the Court held that a case for bail was established. Consequently, the petition was converted into an appeal, and bail was granted subject to the furnishing of sureties.
- Should bail be denied to an accused solely on the ground that other criminal cases are pending against them?
- Does the failure to associate respectable inhabitants of the locality during a search violate Section 103 of the Code of Criminal Procedure 1898?
- Is a female accused entitled to bail when the recovered contraband is small and procedural requirements for search were not strictly followed?
- Section 6, Control of Narcotic Substances Ordinance 1995
- Section 9, Control of Narcotic Substances Ordinance 1995
- Section 12, Control of Narcotic Substances Ordinance 1995
- Section 13, Control of Narcotic Substances Ordinance 1995
- Article 3, Prohibition (Enforcement of Hadd) Order 1979
- Article 4, Prohibition (Enforcement of Hadd) Order 1979
- Section 103, Code of Criminal Procedure 1898
NASIR ASLAM ZAHID, J.---Petitioner Mst. Fahmida wife of Abdul Ghafoor Khan has filed this petition seeking leave against the order dated 6-5-1996 passed by a Division Bench of the Sind High Court dismissing her bail application. We have heard the arguments of Mr. Sardar Muhammad Ishaque, learned A.S.C. For the petitioner, Mr. Hassan Inamullah, Advocate, for Advocate-General, Sind, on behalf of the State and Mr. Moula Bux Bhatti, Special Public Prosecutor for Anti-Narcotics Force cases.
2. The petitioner was arrested on 26-2-1996 under Crime No.1 of 1996 of P.S. Anti-Narcotic Force, Hyderabad, registered under sections 6,9, 12 and 13 of the Control of Narcotic Substances Ordinance and under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979. The allegation against the petitioner is that 35 grams of heroin was recovered from her person when a personal search was made on 26-2-1996. The case is pending trial before the Special Court, Control of Narcotics Substances, Hyderabad. Her bail application was rejected by the Special Court and the same was the fate of her application before the High Court.
Two reasons have been given by the High Court in rejecting the bail application. Of the petitioner, namely, that the petitioner had earlier been challaned in 1994 in 6 cases of similar nature and that the recovery of 35 grams of heroin in the present case was made in the presence of one private Mashir. Mr. Moula Bux Bhatti, Special Public Prosecutor for the Department and who has been nominated by the concerned Ministry to appear in all Anti-Narcotics cases, has conceded on instructions that out of the 6 cases previously registered in 1994 against the petitioner, she has been acquitted in 3 cases and that she is on bail in 3 other cases. In our view, an accused should not be denied the concession of bail only on the ground that some cases are pending against him.
It may be added that in this case out of the 6 cases alleged to have been registered against her, the petitioner has been acquitted in 3 cases and in the other 3 cases she is on bail. In the circumstances, concession of bail should not have been withheld from her on the ground of pendency of the said cases.
Apparently there is a violation of the provisions of section 103, Cr.P C. As to respectable inhabitants of the locality have not been associated in the search proceedings; there is recovery of only 35 grams of heroin for which the maximum punishment is 7 years and the petitioner is a female. In our view, a case for grant of bail is made out.
3. In the circumstances, we convert this petition into an appeal which is allowed and the petitioner is granted bail on her furnishing to sureties in the sum of Rs.50,000 each with a personal bond in the like amount to the satisfaction of the Trial Court.
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