NAVEED AHMAD KHAN vs THE STATE

ORDER

' The petitioner seeks bail after arrest in a case vide F.I.R. No,85 of 1997, dated 16-4-1997 under section 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 read with section 6/9 of Control of Narcotic Substance Act, 1997 registered at Police Station Satto Katla, Lahore.

2. Briefly stated the facts are that on 16-4-1997, the complainant Ghulam Rasool, S.-I., Police Station Satto Katla received a secret information that a truck loaded with a huge quantity of Charas is likely to come from Thokar Niaz Baig towards Raiwind Road. Accordingly, a raiding party was constituted and as a result thereof, a Truck bearing No,6186/DIR was intercepted. As a result of its search, it was found that Naveed Ahmad Khan (petitioner), Wali Muhammad Khan and Mukhtar Ahmad were present in the said truck along with others. On further search, both Naveed Ahmad Khan (petitioner) and Wali Muhammad Khan (not petitioner before this Court) were each found in possession of a shopping bag containing 5 kilograms of Charas. However, Mukhtar Ahmad was found in possession of 10 kilograms of Chars. On the potation of Wali Muhammad Khan, 30 packets containing 30 kilograms of Charas were found lying concealed in a tool box. Accordingly, samples were taken out of each parcel of Chars and separate parcels were prepared on the spot. Hence this F.I.R.

3. The petitioner had applied for bail in the Court of Additional Sessions Judge, Lahore, which was dismissed vide order, dated 24-7-1998. He has now filed the instant petition to try his luck for the same relief.

4. We have heard arguments advanced by learned counsel for the petitioner as well as for the State and have gone through the record.

5. Learned counsel for the petitioner has raised many contentions. His first contention is that as the instant case has been registered under two different provisions of law, so the provisions of section 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 awarding lesser penalty will override the provisions of section 6/9 of Control of Narcotics Substance Act, 1997, that at the most offences fall under section 4 of the Prohibition (Enforcement of Hadd) Order, 1979 which is punishable for two years and being boilable the petitioner is entitled to the relief of bail. He next contended that even if it is assumed that offence under section 6/9 of Control of Narcotics Substance Act, 1997 is applicable, the petitioner has been in jail for more than one year having been arrested on 16-4- 1997, so even on this score his case stands covered under third proviso to section 497, Cr.P.C. And as such, is entitled to the relief of bail even on statutory ground and has relied upon (1) 1990 SCM R 1045 and (2) 1990 SCM R 1090. He further argued that initially case was submitted in the Court of Judicial Magistrate where the trial kept pending and when the matter was ripe for judgment the same has been transferred to the Court of Additional Sessions Judge where de novo trial is yet to start and petitioner cannot be detained indefinitely. He next urged that provisions of section 103, Cr.P.C. Have not been complied with as no independent person of the locality has been associated in the factum of recovery from the present petitioner. He, thus, submitted that all these facts make the case of petitioner open for further inquiry, as such he may be admitted to bail.

6. Conversely, all these contentions raised by learned counsel for the petitioner have been controverted and repudiated by learned counsel for the State. The main contention of learned counsel for the State is that since the petitioner has been found in possession of huge quantity of Chars, so he is not entitled to the relief sought by him. He further contended that since statutory ground was not urged before the trial Court, so the same cannot be pressed into service at this stage.

7. We have given our anxious consideration to the submissions of learned counsel for the parties and have gone through the record. We find that F.I.R. Has been chalked out under section 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 read with section 6/9 of Control of Narcotic Substance Act, 1997. It is also admitted fact that challah was submitted in the Court of Judicial Magistrate where the trial continued and before the case could be disposed of finally, the matter has been referred to the Court of learned Additional Sessions Judge, Lahore for its trial on the ground that offence has been committed under section 6/9 of Control of Narcotic Substance Act, 1997 as such case was not tribal by Judicial Magistrate.

8. Be that as it may, the position is that the petitioner was arrested on 16-4-1997 and since then is in judicial lock-up. It is fact that if an offence is punishable under two different provisions of law, the law entailing lesser punishment is to be pressed into service. The petitioner has been in jail for more than 15 months and the final trial is not in sight. His continuous detention under these circumstances cannot be approved. This being factual position, we are inclined to accept the petition and release the petitioner on bail subject to his furnishing bail bonds in the sum of Rs,2,00,000 (Rupees two laces only) with two solvent and local sureties each in the like amount to the satisfaction of the trial Court.