MUHAMMAD AFZAL vs THE STATE

' Petitioner was arrested under section 3/4, Prohibition (Enforcement of Hadd) Order, 1979 read with section 9 of Control of Narcotics Substance Ordinance, 1997 in a case registered vide F.I.R. No,398, dated 18-8-1997 at Police Station City Kohat.

2. Brief facts of the case are that Muhammad Ayub Khan, S.H.O., Police Station City Kohat alongwith Police Party was busy in checking of the vehicles at Shah Pur Check Post when a flying coach arrived from Peshawar side which was stopped and during checking the present accused- petitioner was apprehended having a plastic bag in his possession. On search of the bag, Charas weighing 1750 grams was recovered, out of which 4 grams was separated to get the Expert's opinion and rest of the Charas and sample taken were sealed into parcels on the spot. Recovery memo. Was also prepared at the spot which was signed by Habibullah 793 L.H.C. And Naseeruddin 254 Police Constable. The present accused-petitioner was arrested and the abovesaid case was registered against him.

3. Learned counsel for the petitioner vehemently argued that the plastic bag containing Charas was not taken into possession from the possession of the petitioner, as it is stated in the F.I.R. Is as under:--

4. {{URDU TEXT}} ' and contended that word " V./4 " does not mean personal possession rather it denotes "by side".

He further contended that recovery of the Charas was effected from inside the flying coach but no one amongst the passengers of the vehicle was made a witness to the recovery. The learned counsel further contended that provisions of Narcotics Control Substance Ordinance, 1997 have been wrongly levelled in the case as the said Ordinance cannot substitute the Prohibition (Enforcement of Hadd) Order, 1979 which is yet a valid law and is applicable in its full force throughout the country.

5. The learned Special Prosecutor and Additional Advocate-General appearing on behalf of the State refuted the arguments of the learned counsel for the petitioner and submitted that petitioner is not entitled to the concession of bail as sufficient quantity of Charas has been recovered from his possession and the sentence provided for the offence falls under the prohibitory clause of section 497(2), Cr.P.C.

6. I have heard the learned counsel for the parties at length and have also perused the record with their able assistance.

7. Admittedly, the recovery of Charas was effected from inside the flying coach which was carrying the other passengers beside the driver and conductor of the vehicle but even then non amongst the passengers or driver, conductor have been made a witness to the recovery. No doubt, a police official is as good a witness as anyone from public but when an accused is charged with an offence which involves the capital punishment, it is incumbent upon the police to associate public witnesses during the investigation of a criminal case. In the present case, despite the availability of the public witnesses on the spot, they were ignored and not made witnesses to the recovery so effected.

8. The petitioner is charged under the Prohibition Order and also under the Control of Narcotics Substance Ordinance, 1997. The two statutes almost deal with the same subject and are enacted for the same purpose and object. The Prohibition (Enforcement of Hadd) Order, 1979 is very much in field with all its force and has not been repealed. Similarly, the Control of Narcotics Substance Ordinance, 1997 is also available in the field as a valid law. Both the said statutes are running parallel to each other and one cannot substitute the other. The quantum of prescribed punishments in both the statutes under section 3/4 of Prohibition (Enforcement of Hadd) Order and Control of Narcotics Substances Ordinance, 1997 are different and, thus, it is to be seen that which one of the two will prevail, as in the present case, the accused is charged under two different statutes, having different punishments. Therefore, the well-established 'general rule would apply that the statute carrying lesser punishment should be taken into consideration for the purpose of grant of bail.

8. For all the said reasons, this application is accepted. The petitioner shall be released as per short order on bail, on furnishing bail bond in the sum of Rs,50,000 (Rupees fifty thousand) with two sureties each in the like amount to the satisfaction of the trial Court. The trial Court shall see to it that sureties are local and men of means.