2025 M L D 1980
[Balochistan]
Before Abdullah Baloch and Muhammad Najam -ud-Din Mengal, JJ
TAJ MUHAMMAD ---Applicant
Versus
The STATE--- Respondent
Criminal Bail Application No. 23 of 2025, decided on 4th March, 2025.
Criminal Procedure Code (V of 1898) ---
----S. 497(2) ---Control of Narcotic Substances Act (XXV of 1997), S. 9(c) ---Recovery of
narcotic substances ---Bail, grant of ---Further inquiry ---Allegation against the accused
applicant was that 2000 grams charas was recovered from his possession ---Investigation
had already been completed by submitting the challan and other incriminatory evidence
in the Trial Court, meaning thereby that the applicant (accused) was no more required for further probe or interrogation ---Even otherwise, the recovery of contraband from the
exclusive and conscious possession of the applicant (accused) was yet to be established during trial, hence following the principles of further inquiry the applicant (accused) had succeeded in making out a case for grant of bail ---Bail application was allowed ,in
circumstances.
Musadiq Ali for Applicant.
Abdul Karim Malghani for the State.
Date of hearing: 19th February, 2025.
ORDER
MUHAMMAD NAJAM -UD-DIN MENGAL, J .---This order disposes of Criminal
Bail Application No.23 of 2025, whereby the applicant (accused) Taj Muhammad son of Haji Muhammad, who is seeking bail after arrest in case FIR No.10 of 2022 dated 13th February 2022, Police Station Shaheed Ameer Muhammad Dasti, District Quetta under Section 9 (C) of CNS Act, 1997.
2. Facts of the case are that on 13th February 2022 the complainant namely Abdul
Wali Achakzai, SI lodged FIR No.10/2022 under Section 9(c) of CNS Act, 1997 with the averments that on the said date he along with other police officials was on routine patrolling duty, during the course whereof received secret information that at about 10:30 AM that one Taj Muhammad had stolen a motorcycle CD -70 from Kocha Sher Ali and
riding it from Sabzal to sale it out. In pursuant to such information, complainant along with other police personnel erected a Naka at Sabzal Road near Tarkha Graveyard and started checking of motorcycles. On pointation of Spy a person coming from Spiny Road on a Honda CD -70 motorcycle was stopped. On query he disclosed his name as Taj Muhammad
and Motorcycle was taken out from his possession. Upon checking, same was found stolen property of case FIR No. 09/2022 shopper was found tied on back of motorcycle which contained a yellowish- brown bag. The search of said bag was conducted which resulted
into recovery of 4 pieces of chars, each piece weighing 500 -grams total weighing 2000-
grams, out of which 10 -grams were separated from each piece and sealed in parcel Nos.1 to
4 for FSL, while the remaining contraband was sealed in parcel Nos.1- A to 4 -A.
3. After registration of FIR, the applicant (accused) was arrested and subjected to
investigation and on completion thereof, he was remanded to judicial custody. In the meanwhile, the applicant (accused) filed an application for grant of bail in the Court of learned Additional Sessions Judge -IX, Quetta ("trial Court"), which was rejected, vide
order dated 27th December 2024. Whereafter, instant application has been filed.
4. Learned counsel for the applicant (accused) argued that the applicant (accused) is
innocent of the charge and he cannot conceive to commit such crime, but with malafide
intention he was arrested in the instant case; that when applicant (accused) was booked in the case and even when was indicted, provisions of section 9- (1) 3 -c were not inserted in
CNSA, 1997 and even the provisions of Amendment Act, 2022 had no retrospective effect
as the said section do not contain any provision signifying the intention of legislature qua
its applicability with retrospective effect, thus keeping in view the above legal position as
well as dictums of the Hon'ble Supreme Court, the quantum of punishment to be awarded in case of establishing charge to the applicant (accused) falls within the ambit of prohibitory clause of Section 497(1), Cr.P.C.; that investigation is complete and the accused/applicant is no more required for any purpose of investigation or probe.
5. Learned State Counsel strongly opposed the contention so raised by the counsel for
the applicant and contended that the recovery of contraband has been proved to have been effected from the possession of the applicant and that the applicant has failed to point out any ill -will or malafide intention with regard to his false implication in the instant case.
6. Heard the learned counsel and perused the available record. At bail stage, deeper
appreciation of evidence would prejudice the case of either party and record is to be scrutinized tentatively and on tentative assessment of record transpires that the moot question involves into the matter is that whether the provisions of section 9(1)3 -C of the
Amendment Act, 2022 have retrospective effect and in turn depriving of the applicant (accused) who has been arrested, indicted before 06.09.2022 when the said section was inserted. Admitted fact of the case is that the applicant (accused) was booked in the instant case on 13th February 2022, under Section 9(c) of CNSA, 1997. There is also no denial to the fact that Sections 9(1)3 -C etc were introduced by virtue of an amendment through the
Amended Act, 2022 dated 06.09.2022, while, at such time, the case in hand had already been registered and the applicant (accused) was already behind the bar and the trial of the case was commenced.
7. Bare perusal of above would suggest that same have given no retrospective effect by
the legislature. Even it does not transpire therefrom that the rights available to an accused involved in case falling within the purview of CNSA, 1997 prior to the amendment made on 06.09.2022 have been taken away in any manner whatsoever. The provisions of Section 9 (1) 3 -C of Amendment Act, 2022 from their bare reading are prospective in nature and
same cannot be given effect retrospectively by placing any sort of embargo on the right of an applicant (accused) qua earning remissions, who had been arrested, indicted and even facing trial prior to insertion of Section 9 (1) 3 (C) through Amendment Act, 2022. Almost similar sort of point in issue was taken up and dealt with by the Hon'ble Lahore High Court in the case "M. Aslam Mouvia v. Home Secretary and others" (PLD 2011 Lahore 323), wherein after having referred to good number of case laws on the moot point by the Apex Court resolved the same in the following terms:
"20. The trial of the petitioner commenced before insertion of section 21 -F of the
ATA. Certain rights had already accrued in favour of the petitioner by way of his entitlement to the benefit of remissions in accordance with law in the field at the relevant time i.e. the time that the alleged offence was committed, FIR was registered against him, he was arrested and his trial commenced. Any subsequent changes in law would not have the effect of depriving him of the rights which were available to him at the time when the offence was committed and the trial commenced. In addition, there is nothing in section 21 -F of ATA to indicate even
remotely that it has retrospective operation or that it has the effect of taking away the rights that were available to certain convicts under the prevalent law when the offence was committed, the FIR was registered or the trial commenced. Looked at from this point of view, the provisions of section 21 -F are prospective in nature and,
therefore, cannot take away or affect the rights which were available to the petitioner at the relevant time. In support of this contention, reliance may also usefully be placed on the dictum of the honourable Supreme Court of Pakistan in the case of Commissioner Sindh Employees etc. (2002 SCMR 39).
21. In the case of Pakistan Steel Mills (2002 SCMR 1023), the honourable Supreme
Court of Pakistan has held that any amendment in law will not take away, empower, nullify or destroy a vested right, which has attained finality and has become past
and closed transaction. Admittedly, registration of the case against the petitioner,
his arrest and initation of his trial were all prior to the insertion of section 21- F. As
result, the dictum of the honourable Supreme Court of Pakistan in the aforesaid cases is clearly applicable to the facts and circumstances of the present case. In Muhammad Rafi ud Din's case reported as PLD 1971 SC 252 and Hassan's case
reported as PLD 1975 SC 1, it has clearly and unambiguously been laid down that
where a law was altered during pendency of an action, the rights of the parties are to
be decided according to the law as it existed when the action was initiated and not under the law prevailing on the date of the judgment/order. Looked at from this angle also, the act of the respondents whereby the petitioner has been denied the benefit of remissions under the Pakistan Prisons Rules is neither legally justified nor sustainable.
8. The investigation has already been completed by submitting the challan and other
incriminatory evidence in the trial Court, meaning thereby that the applicant (accused) is
no more required for further probe or interrogation. Even otherwise, the recovery of
contraband from the exclusive and conscious possession of the applicant (accused) is yet to
be established during trial, hence following the principles of further inquiry the learned counsel for applicant (accused) has succeeded in making out a case for grant of bail.
For the above reasons, the application is allowed and the applicant (accused) Taj
Muhammad son of Haji Muhammad, is ordered to be released on bail subject to furnishing Fardi surety in the sum of Rs.200,000/ - (Rupees Two Hundred Thousand), with P.R. bond of the like
amount to the satisfaction of trial Court or Additional Registrar of this Court.
The observation made hereinabove are tentative in nature and same shall not
influence the merits of the case at the trial.
JK/45/Bal. Application allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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