2025 M L D 778
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Shaukat Ali Rakhshani, JJ
MUHAMMAD ISMAIL ---Applicant
Versus
The STATE--- Respondent
Criminal Bail Application No. 170 of 2024, decided on 29th October, 2024.
Criminal Procedure Code (V of 1898) ---
----S.497(2) ---Control of Narcotic Substances Act (XXV of 1997) [as amended by the
Control of Narcotic Substances (Amendment) Act, 2022], Ss. 9(1)(3)(b) & 9(1)(3)(c) ---
Possession of narcotic substances ---Post arrest bail, grant of ---Recovery of baked charas,
rapped in polythene bag weighing 1200 grams ---Prosecution failed to show that if the
polythene bag of charas was separated than what would be the net weight of the charas,
thus, the case was one of further inquiry in order to ascertain that it fells within the ambit of S.9(1)(3)(b) or S.9(1)(3)(c) of the Control of Narcotic Substances Act, 1997, [as amended by the Control of Narcotic Substances (Amendment) Act, 2022] (Amended Act) for determining the quantum of punishment ---It was a border line case between
Ss.9(1)(3)(b) & 9(1)(3)(c) of the Amended Act ---Section 9(1)(3)(b) did not fall under the
prohibitory clause of S.497, Cr.P.C., which entitled the applicant for the concession of bail on the principle that in the offences of non- prohibitory clause grant of bail is a rule, whilst
its refusal is an exception--- Bail was allowed, in circumstances.
Aya Khan v. The State 2020 SCMR 350 and Muhammad Ishaq v. State PLJ 2021
Cr.C Note 94 rel.
Ghulam Farooq Mengal for Applicant.
Younas Mengal, Additional Prosecutor General for the State.
Date of hearing: 24th October, 2024.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J .---Applicant seeks bail in case vide FIR No.45 of
2024 dated 17.04.2024 registered with Police Station, Jinnah Town District, Quetta for the offences punishable under section 9(1)3(c) of the Control of Narcotics Substances (Amendment) Act, 2022 ("Act of 2022") for possessing 1200 grams of baked 'Charas' recovered from the personal possession of the applicant, having been contained in a white colour polythene bag.
2. Tersely, facts germane for disposal of the instant application are that complainant
Zahoor Ahmed Tareen SI/SHO got registered the FIR ibid with the averments that on 17.04.2024 at about 7:30 pm during patrolling duty on the basis of suspicion apprehended the applicant standing at road side near Jinnah Town Dream Land Street, whereupon search, the police contingent recovered a white colour polythene bag from waistband of his shalwar, containing 1200 grams of baked 'Charas', whereof parcel Nos.1 and 2 were prepared.
An attempt for grant of bail was made by the accused applicant before learned
Sessions Judge -Special Judge CNS, Quetta ("Trial Court"), but remained unsuccessful as his
application for grant of bail was dismissed on 05.10.2024.
3. Learned counsel for the applicant inter alia contended that the applicant is innocent,
who has maliciously been involved in the instant case. He further stated that the prosecution has failed to bring on record any trustworthy and confidence inspiring evidence, whereas
there are material contradictions in their statements, making the case of the applicant one of
further inquiry. Added further that the quantity of the charas exceeds a little to the upper limit of section 9(3)(b) of the Control of Narcotic Substances (Amendment) Act of 1997) ("Act of 1997"), which falls out of the purview of prohibitory clause of section 497 of Cr.P.C.
On the other hand, learned APG vigorously resisted the bail application and refuted
the arguments so put -forth by the learned counsel for the applicant and urged that the
prosecution has brought overwhelming evidence on record involving the accused- applicant in
the instant case, which fact has rightly been endorsed by the Trial Court, while declining his application for grant of bail as his case falls within the prohibitory clause of section 497 of the Criminal Procedure Code, 1898 ("Cr.P.C."), which disentitles the applicant for the concession of bail.
4. Heard. Record scanned out cover to cover with the able assistance of learned counsel
for the parties.
5. The applicant has been indicted for having a white colored polythene bag in the
waistband of his shalwar, wherein baked charas weighing 1200 grams was recovered.
Fleeting view of the record, more particularly, the FIR and memo. of recovery shows that the
charas was weighed with the polythene bag, which was found to be 1200 grams, thus, the prosecution has failed to show that if the polythene bag of 'charas' is separated than what would be the net weight of the charas, as such, it would be a case of further enquiry as to
whether the recovered charas squares under section 9(3)(b) or under section 9(3)(c) of the
Act of 1997 in order to determine the quantum of punishment as well as to find out as to
whether the sentence falls within the prohibitory clause of section 497 of Cr.P.C. or
otherwise.
6. In light of the above, it can be gathered with no other view that eventually it becomes
a border line case between section (b) and (c) of section 9(3) of the Act of 1997 as the weight whereof is slightly higher than the prescribed limit of section 9(3)(b). Admittedly, section 9(3)(b) does not fall under the prohibitory clause of section 497 of Cr.P.C, which entitles the accused -applicant for the concession of bail on the principle that bail in the offences of non-
prohibitory clause is a rule, whilst its refusal is an exception. In this regard, we are fortified with the view expounded in the case of "Aya Khan v The State" (2020 SCMR 350) and "Muhammad Ishaq v. State" (PLJ 2021 Cr.C Note 94).
7. Corollary, the instant application is allowed and consequent thereto, accused -
applicant Muhammad Ismail son of Abdullah is admitted to bail, subject to furnishing surety in the sum of Rs.100,000/ - (One hundred thousand) with PR bond of like amount to the
satisfaction of the Additional Registrar of this Court or Trial Court.
The observations made hereinabove are tentative in nature, which shall not influence
the merits of the case at trial.
SA/142/Bal. Bail granted.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,
let us know.