JAMSHAID HAIDER vs THE STATE

ORDER

' As a result of the case bearing F.I.R. No, 147 of 2001 registered with Police Station City Burewala, on 16-5-2001, under section 9(c) of Control of Narcotic Substances Act, 1997, Jamshaid Haider, petitioner stands involved in the allegations that on 16-5-2001 when he was apprehended by the police party Charas weighing 1050 grams was found in his possession, so at the instance of Muhammad Nasrullah S.1./S.H.O., Police Station City Burewala, the above said case was registered.

2. Learned counsel for the petitioner mainly argued that all the witnesses in this case are police employees and no person from the locality was associated to witness the recovery proceedings, despite the fact that it was allegedly effected from a thickly-populated area; that Muhammad Nasrullah S.I./S.H.O. Is the complainant and Investigating Officer in this case as well; that the petitioner is aged about 16-h/2 years but with a mala fide intention he has been shown to be 19/20 years old; that the report of the Chemical Examiner is negative, therefore, no case exists against the petitioner; that the parcel was despatched to the Office of Chemical Examiner at quite belated stage but despite of these facts the learned trial Court illegally rejected the bail petition of the petitioner and that in view of. , the circumstances and discussed above, it is a case of further inquiry and the petitioner is entitled for bail.

'Which have been opposed by the learned State Counsel who submitted that the petitioner is named in the F.I.R. That the offence falls within the prohibitory clause of section 497, Cr.P.C. And that report of the Chemical Examiner is not negative as on the direction of the Chemical Examiner another sample prepared under the supervision of the Magistrate was sent to the office of Chemical Examiner, therefore, it is not a fit case for bail.

' So far any violation of section 103, Cr.P.C. Is concerned, it may be mentioned here that the provisions of section 103, Cr.P.C. Have been made in-applicable by section 25 of the Control of Narcotic Substances Act, 1997 in the cases of narcotics. The report of the Chemical Examiner available on the record speaks about the sample to be inconclusive and the Chemical Examiner directed to the local police for dispatch of the .Second sample so inconclusive never means negative. The second sample was prepared under the supervision of Illaqa Magistrate and sent to the Cemical Examiner. Because of the recovery of the alleged narcotics the provisions of section.

9(c) of the Act (ibid) are attracted, therefore, the offence falls within the prohibitory clause of section. 497, Cr.P.C.

4. Here it may be clarified that subsection (1) of section 51 of the Control of Narcotic Substances Act, 1997 speaks that bail shall not be granted to an accused person charged within an offence under this Act or under any other law relating to narcotics where the offence is punishable with death. From the perusal of this section apparently it appears as if there is bar on the grant of bail to the accused who is involved in an offence punishable with death, for example under section 9,(c) of the Control of Narcotic Substances Act, death penalty at the maximum is provided, but it does not mean that the provisions of sections 496 and 497 of the Code of Criminal Procedure have been made inapplicable for the reason that under section 9(c), sentence of death is upper limit and that the imprisonment for a term extending to 14 years is a lower limit. Had there been an exclusive death penalty under section 9(c), then certainly the provisions of ,sections 496 and 497, Cr.P.C. Had been ineffective in grant of bail to an accused person involved in the offence under section 9(c) of the Control of Narcotics Substances Act, 1997. Since the lower limit of punishment up to 14 years has been provided and when there is a discretion in awarding the punishment then the provisions of section 51 of the Act is defective and that the Courts are competent to attract the provisions of sections 496 and 497, Cr.P.C. In dealing with the bail petitions.

5. Anyhow in view of the above circumstances when the offence falls within the prohibitory clause of section 497, Cr.P.C. It is not a fit case for bail, therefore, this petition being without merit is hereby dismissed.