Mst. NASIRA BIBI vs THE STATE

ORDER

' Seeks bail in case F.I.R. No,22 of 1997 dated 16-6-1997 registered with Police Station Anti-Narcotic Force Model Town, Lahore under section 3/4 Prohibition (Enforcement of Hadd) Order, 1979 read with sections 9 and 15 of the Control of Narcotic Substances Act, 1997. The prosecution story as given in the F.I.R. Registered on the statement of Ahmad Jalil Group Leader A.N.F. Lahore briefly stated is that on source report that Mst. Nasira alias Shahida and her brothers co-accused Shahbaz, Pervaiz and Safdar were indulging in illicit drug trafficking, a raiding party was constituted pursuant to which a raid was conducted on the fateful day and petitioner was caught red-handed trying to hide a packet which on being search contained heroin. The co-accused her real brother Rana Safdar was also arrested during this raid. The packet recovered during raid was sent to Chemical Examiner and the report received is to the effect that it contained heroin.

2. The learned counsel for the petitioner prays for bail on the ground that the case is false and product of mala fides inasmuch as petitioner's husband who is a D.S.P. Opposed one Brigadier Zulfiqar Cheema, a sitting M.P.A. And on account of grudge that he bored against the said D.S.P., a false case has been registered; that no respectable of the locality was associated with the recovery; that the offence alleged does not fall within the prohibitory clause of section 497, Cr.P.C.; that the petitioner has a suckling baby who too has been lodged in Jail. In support of the afore- referred submission, learned counsel for the petitioner relies on a judgment of the Hon'ble Supreme Court in Mst. Fahmida Begum's case 1997 SCMR 947.

3. The learned counsel for the A.N.F. As well as Special Prosecutor have opposed the bail application by submitting that the petitioner is a member of gang which deals in drug trafficking; that she was residing in a house which had a wall of 80 feet height; that she was caught red-handed trying to hide packet of heroin; that the report of the Chemical Examiner is positive and that in the afore- referred judgment of the Hon'ble Supreme Court, the effect of section 51 of the Control of Norcotics Substances Act, 1997 has not been considered.

4. We have heard the parties and have gone through the record. Admittedly, the petitioner was apprehended at the spot; a packet was recovered which when sent to the Chemical Examiner, was found to contain heroin. There is no cavil to the proposition that by virtue of quantity of heroin recovered from the petitioner, the offence does not fall in the prohibitory clause of section 497, Cr.P.C. But that ipso facto would not create a right of bail as section 51 of the Control of Narcotics Substances Act, 1997 mandates as under:-- "51. No bail to be granted in respect of certain offences.--Notwithstanding anything contained in sections 496 and 497 of the Cr.P.C. 1898 (V of 1898), bail shall not be granted to an accused person charged with an offence under this Act, or under any other law, relating to narcotics where the offence is punishable with death.

(2) In the case of other offences punishable under this Act, bail shall not be normally granted unless the Court is of the opinion that it is a fit case for the grant of bail and against the security of a substantial."

' The Judgment of the Hon'ble Supreme Court to which reference has been made by the learned counsel is distinguishable as the effect of the afore-referred provision has not been considered.

5. The allegations of mala fides prima-facie are not tenable as had the sitting M.T.A. Any grudge against husband of the petitioner why should have he planned a false raid on his wife and her brother-in-law and spare her husband?.

6. We have also given anxious thoughts to the right of bail to a woman under proviso 1 to subsection (1), Cr.P.C. This Court cannot help taking notice of the new modes deviced by human ingenuity for drug pushing and would not presume all virtues to a woman which was the hall mark of the age of chivalry. A woman is no longer domesticated but the hallow of respectability and modesty woven around the traditional woman is making her an easy conduct for many a under cover crimes. The Courts may refuse the bail if the allegations are serious and particularly under section 51 of the Narcotics Substances Act which provides that, "bail should not be normally granted", Criminal cases are not lacking when women were refused bail. In Mst. Taj Bibi v. The State (PLD 1989 Quetta 60), the order cancelling bail to a woman was upheld by the Court and it was observed at page 61 as under:- "Thus females involved in such degenerated offences would not be automatically entitled to discretion merely by virtue of sex unless law so permits on merits."

' Similar view was taken in Mst. Amna v. The State (PLD 1989 Kar 40) and Mst. Akhtar Bibi v. The State 1989 PCr.LJ 83.

7. For afore-referred reasons, we are not inclined to admit the petitioner to bail in this case. The petition has no merit which is dismissed.

Bail. Refused.