SHAUKAT HUSSAIN vs THE STATE
This is a criminal miscellaneous petition filed before the Lahore High Court seeking post-arrest bail in a case registered under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 and section 9(c) of the Control of Narcotic Substances Ordinance, 1996. The prosecution alleged that the petitioner was apprehended red-handed with 497 grams of heroin following a decoy operation. The core legal question was whether the petitioner was entitled to post-arrest bail considering the statutory delay in the conclusion of the trial, the hostile testimony of public eye-witnesses, and the weight of the recovered substance not falling within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898. The Court held that since the public eye-witnesses did not support the prosecution version, making the recovery doubtful, and the petitioner had already endured over two years of incarceration without the trial concluding in the near future, the case for further inquiry was made out. The Court laid down the principle that the hostility of key eye-witnesses combined with protracted statutory delay in trial warrants the grant of post-arrest bail in narcotics cases not falling within the prohibitory clause.
- Whether post-arrest bail can be granted when public eye-witnesses do not support the prosecution version at trial?
- Does the recovery of less than one kilogram of heroin fall within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898?
- Can prolonged incarceration of over two years without conclusion of the trial serve as a ground for granting bail?
- Article 3/4, Prohibition (Enforcement of Hadd) Order, 1979
- Section 9(c), Control of Narcotic Substances Ordinance, 1996
- Section 497, Code of Criminal Procedure 1898
ORDER
1. ' BASHIR A. MUJAHID, J.--- Petitioner, through this criminal miscellaneous, seeks post-arrest bail in case registered vide F.I.R. No,138 of 1997, dated 2-4-1997 under Article 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 and section 9(c) of the Control of Narcotic Substances Ordinance, 1996, at Police Station City Ahmadpur East.
2. ' The prosecution case, according to F.I.R., is that on 20-4-1997, Muhammad Ramzan, S.H.O., Police Station Ahmadpur East, alongwith other police officials, was present near Chowk Jamia Masjid on patrol duty; that he was informed the petitioner was selling heroin in Chowk Naktani. On this information, Muhammad Akram son of Allah Bachaya was sent with tainted currency of Rs,50 for the purchase of heroin. Said Muhammad Akram was followed by the police party and within their view Muhammad Akram purchased one packet of heroin from the petitioner and handed over the same to the complainant. As a result, the petitioner was apprehended by the police red-handed and 497 grams of heroin, and same note of Rs,50 was recovered from the petitioner. One gram of heroin was taken as sample and sent to Chemical Examiner for its examination. The petitioner applied for post-arrest bail, which was refused vide order, dated 17-3-1999.
3. ' Learned counsel for the petitioner contends that a period of more than two years has lapsed and the trial has not been concluded so far. It is further argued that during the trial, the alleged two public eye-witnesses namely Muhammad Akram and Mumtaz Hussain have not supported the prosecution version. It is further argued that only one gram heroin has been sent for examination which makes the whole affair doubtful. It is also argued that the alleged recovery of heroin is less than one Kg. And the maximum sentence as provided under the law is seven years and does not fall under the prohibitory clause of section 497, Cr.P.C.
4. ' Learned counsel for the State has opposed the application, as the trial is in progress, according to him. Only the police officials are to be examined. The petitioner was apprehended red-handed with heroin and is involved in a heinous offence, and is not entitled for concession of the bail.
5. ' We have heard the arguments of the learned counsel for the parties and perused the record.
6. The statements of two persecution witnesses Mumtaz Hussain and Muhammad Akram were recorded by the trial Court and they had not supported the prosecution version. The recovery of the alleged heroin from the possession of the petitioner has been made doubtful. The remaining witnesses will not in any way strengthen the case of the prosecution. The petitioner is already in jail for more than two years. 'There is no likelihood that the trial will be concluded in very near future.
7. ' In view of the above, we allow the petitioner to be released on bail provided he furnishes bail bond in the sum of Rs,100,000 with two sureties each in the like amount to the satisfaction of the learned trial Court.