AKHTAR HUSSAIN SHAH vs THE STATE

' The petitioner is charged in F.I.R. No,373, dated 30-4-1998 under Article 3/4/26(2) of the Prohibition (Enforcement of Hadd) Order, 1979 read with section 9-C of the Control of Narcotics Substance Act, 1997 of Police Station, City Haripur whereby Chars weighing one kilogram, opium weighing 100 grams, a 'Kupi' of wine and heroin weighing 15 grams was recovered from the possession of the petitioner. After the refusal of bail from the Court of Sessions Judge, Haripur vide his order, dated 26-5-1998 he has applied to this Court for his release on bail.

2. Learned counsel for the petitioner contended that the report itself contains that the narcotics recovered from the petitioner belonged to co-accused Zulfiqar who had given the same to the petitioner for sale, and Zulfiqar has been released on bail by the learned Sessions Judge vide his order, dated 6-6-1998. He further contended that the report of the Chemical Examiner has not been received so far to show whether the narcotics recovered from the petitioner were 'Chars', Opium, Wine, and Heroin. He further submitted that if a person is charged under two different laws providing different punishments then the law which prescribe lesser punishment would be taken into account for the purpose of bail. He urged that the complainant himself investigated the case which has prejudiced the petitioner's case.

3. The State counsel on the other hand opposed the bail on the ground that the petitioner is involved in a narcotics case which is punishable to life imprisonment under Article 4 of the Prohibition Order, therefore, the petitioner is not entitled to the concession of bail as the offences fall under the prohibitory clause.

4. The perusal of the F.I.R. Would show that the petitioner was apprehended from near the house of Zulfiqar who has also been charged in the same F.I.R. Under Article 26(2) of the Prohibition Order, 1979 and is alleged to have handed over the narcotics to the petitioner for sale. He has been allowed bail by the learned Sessions Judge, therefore, the rule of consistency demands that the petitioner should also he allowed the same concession. As per F.I.R. The samples were separated from the recovered narcotics for their chemical examination but uphill now the report has not been received. The petitioner has been charged under the Prohibition Order as well as under the Control of Narcotics Substance Act, 1997. The former law provide life imprisonment whereas the later provides imprisonment for 7 years with fine under its section 9(b). It is well-settled principle of law that where a person is charged under two laws which provide different punishments, then the rule is to extend the benefit of the statute to the offender providing lesser punishment for the purpose of hail. The S.H.O. Himself was the complainant who leveled accusation against the petitioner, was also a recovery witness and the Investigating Officer who could not probe into the case under any norm of justice. ##TSE# The Chemical Report despite the lapse of over two months period has not been received. In the circumstances, this application is allowed, the petitioner is admitted to bail in the sum of Rs,one lac (Rs,1,00,000) with two sureties each in the like amount to the satisfaction of Illaqa/Judicial Magistrate. The Magistrate must ensure that the sureties are local and men of means.