NOOR ALI KHAN vs THE STATE and another
The petitioner, Noor Ali Khan, sought post-arrest bail after being found in possession of 1100 grams of Charas, leading to a case registered under Section 9 of the Control of Narcotic Substances Act, 1997 and Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979. The core legal question was whether the petitioner was entitled to bail given the quantity of narcotics recovered and the likelihood of the maximum sentence. The Peshawar High Court held that the petitioner was entitled to bail, reasoning that the quantity recovered exceeded the threshold of clause (b) by only 100 grams, the petitioner was not a previous convict, and the circumstances distinguished this case from heavier trafficking precedents cited by the State. The key principle laid down is that while deciding a bail application in narcotics cases, the court may consider the quantum of sentence likely to be awarded and surrounding mitigating circumstances such as the absence of previous convictions.
- Can a court consider the likely sentence to be awarded when deciding a post-arrest bail application in a narcotics case?
- Does the recovery of 1100 grams of Charas without a previous conviction entitle an accused to post-arrest bail?
- Are the principles governing bail for heroin trafficking automatically applicable to minor excess quantities of Charas?
- Section 9, Control of Narcotic Substances Act, 1997
- Article 3, Prohibition (Enforcement of Hadd) Order, 1979
- Article 4, Prohibition (Enforcement of Hadd) Order, 1979
' Petitioner Noor Ali Khan was allegedly found in possession of Plastic bag containing 1100 grams of Charas by Muhammad Tahir Khan, S.H.O. On 27-6-2002 at 2 p.m. And accordingly case under section 9 of the Control of Narcotic Substances Act, 1997 read with Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 was registered against him, vide F.I.R. No,251 dated 27-6-2002.
He was refused bail by the Courts below and he has approached this Court for his,release on bail.
2. Mr. Muhammad Yaqoob Khan, Marwat, learned counsel for the petitioner has contended that the case of his client was of border line between clause 'B' and 'C' of section 9 of the C.N.S.A. According to him, in the given circumstances there is nothing to show that he is previous convict etc., the chances of awarding maximum punishment are also lacking.
3. On the other hand, the learned Deputy Advocate-General relying on the case of Muhammad 4fzal Darzi v. State (2000 SCM R 1837) and the case of Fida Jan v. The State (2001 SCM R 36) contended that the accused in the cited cases were refused bail respectively irrespective of the quantity recovered from them.
4. It is an established principle of criminal jurisprudence that while awarding the sentence, the Court has to take into account the various A circumstances of the case so that the punishment should be proportionate to the offence with which an accused is charged with. The quantity exceeds by margin of 1000 grams in the instant case. The Court can while deciding the bail application can take into account the sentence C likely to be awarded as well as the other circumstances of the case. Perusal of the record does not show that the petitioner is a previous convict or he is previously involved in such-like cases. In case Fida Jan ID v. State (supra), 26 Kgs.
Of Charas was recovered from the petitioner who was allegedly, trafficking and similarly in the other case cited by the learned Deputy Advocate-General 1500 grams of heroin was recovered.
Certainly heroin is much more dangerous and valuable than the Charas.
5. For the reasons stated above, the petition for bail is allowed and the petitioner is admitted to bail on furnishing bail bonds in the sum of Rs,3,00,000 (Rs Three lacs) with two sureties each in the like amount to the satisfaction of the Illaqa/Judicial Magistrate who shall see that the sureties belong to a respectable family and men of means/local.
Cited by 6 cases
- INAYAT alias ANO vs THE STATE 2012 MLD 926
- YOUSIF KHAN vs THE STATE 2011 YLR 329
- AYAZ Versus State 2011 PCrLJ 177
- FARHAD SAJID vs NATIONAL ACCOUNTABILITY BUREAU, ISLAMABAD through Chairman and 2 others 2008 P Cr. L J 910
- MUHAMMAD RIAZ Versus State 2005 PCRLJ 305
- ZAHID HUSSAIN Versus State 2010 YLR 2166