GUL MUHAMMAD vs THE STATE
The applicant Gul Muhammad sought post-arrest bail in a case registered under section 6/9 of the Control of Narcotics Substances Act, 1997, after 530 grams of Charas was allegedly recovered from his personal search. The core legal question was whether the applicant could be held vicariously liable for the entire quantity of narcotics recovered from multiple co-accused apprehended at the same spot, and whether he was entitled to bail given the quantum of recovery attributed specifically to him. The court held that the applicant could not be made responsible for the entire bulk quantity of 1530 grams when individual recoveries were clearly demarcated from distinct persons, and the specific quantity recovered from the applicant fell within a lower punishment tier. Consequently, the court laid down the principle that an accused is only liable for the specific quantity of narcotics recovered from his individual personal possession unless found acting jointly within an enclosed space, and granted post-arrest bail to the applicant.
- Whether an accused can be held responsible for the entire quantity of narcotics recovered from all co-accused when apprehended together in an open place?
- Does the exclusion of section 103 Cr.P.C. under the Control of Narcotics Substances Act 1997 justify joining separate individual recoveries into a single bulk charge for bail purposes?
- Is an accused entitled to post-arrest bail when the specific quantity of narcotics recovered from his personal possession falls under a statutory bracket carrying a lesser maximum punishment?
- Section 6/9, Control of Narcotics Substances Act 1997
- Section 9(b), Control of Narcotics Substances Act 1997
- Section 103, Code of Criminal Procedure 1898
ORDER
1. ' The applicant, Gul Muhammad son of Lal Muhammad seeks bail in a case under section 6/9 of Control of Narcotics Substances Act, 1997, (F.I.R. No,19 of 1999, Police Station A.N.F.I), pending trial before the Court of learned Sessions/Special Judge (A.N.F.), Karachi (East).
2. ' Prosecution case briefly stated is that the complainant A.S.-I. Jehangir Khan while on patrol duty received spy information that Charas was being sold near Hashmi Masjid, P.I.B. Colony. When he reached the given spot he came across the applicant and three 'other accused persons. It is alleged that the police party happened to secure different quantities of Charas from the applicant and the other co-accused, Gul Muhammad son of Niaz Muhammad. It is stated in F.I.R. That from the possession of applicant 530 grams of Charas was secured while 400 grams Charas was secured from the possession of the co-accused Gut Muhammad son of Niaz Muhammad. It is further alleged that the absconding accused Nazar Muhammad was also in possession of some quantity of Charas which he had thrown on the ground while running away which later on weighed 600 grams.
3. ' Challan has been submitted against the applicant and the other co-accused, namely, Gul Muhammad son of Niaz Muhammad, Nazar Muhammad and Muhammad Sharif.
4. ' It has been contended on behalf of the applicant that the case against the applicant would fall under section 9(b) of Control of Narcotic Substances Act, 1997. The Mashirs of recovery are the subordinate police officials of the same police station. There is only a general statement that the complainant attempted to secure Mashirs from the public but none was prepared to act as such.
5. The learned counsel lastly argued that the maximum punishment prescribed under the law in the present case would not exceed seven years' R.I. He placed reliance upon the eases of Nazan Shah v. The State 1998 PCr.LJ 1540 and Liaquat Ali v. The State reported in 1998 PCr.LJ 1444.
6. ' On the other hand, learned Special Prosecutor appearing for the State contended that the application of section 103, Cr.P.0 stands excluded in the cases falling under the Control of Narcotics Substances Act, 1997. He placed reliance on the case of Buner Gul v. The State 1999 PCr.LJ 728. It is further contended by him that the applicant would be reasonable for the entire quantity of 1530 grams of Charas allegedly secured from the possession of all the accused in the case as they were hauled up by the police party at the same place. He also referred to the case of Mst. Nasira Bibi v.
7. The State reported in PLD 1998 Lah.
8. 146.
9. ' Under the circumstances of the case we are not impressed by the arguments of the learned counsel for the State in so far as they make the applicant responsible for the entire quantity of the narcotics. It is not the case of prosecution that the accused were found selling Charas within the bounds of an enclosure, room or shop but it is alleged that on personal search the Charas was secured from the pocket of the inner shirt worn by the accused/applicant. There is no ambiguity in the process of securing the quantity of narcotics. It has been mentioned that the quantity that was secured from the possession of the applicant weighed only 530 grams. The case-law cited by the learned counsel also support the case of the applicant. In view of the case reported as Tariq Bashir v. The State in PLD 1995 SC 34, we are inclined to allow bail to the applicant. The application is, thus, allowed and the applicant is granted bail subject to his furnishing a security in the sum of Rs,1,00,000 (Rupees one lac) and P.R. Bond in the like sum to the satisfaction of the trial Court.
Cited by 2 cases
- MUHAMMAD MUDASIR vs THE STATE 2010 YLR 2910
- SHAH NAWAZ THAHEEM vs THE STATE 2003 MLD 1236