Khushal Vs The State

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.Iudgmemt Sheet

TN THE PESHAWARHTGH COURT,

PESHAWAR.

IUNCTAE NHPARTMHNT,

JUDGMENT

C r.MBA No. 1202-P 12025.

Date of hearing 22.04.2025.

Khushal Vs The State.

Petitioner (s) by:Mr. Nauman Rauf Advocate.

State by: Mr. Jawad Khan AAG.

,s:k rs r(

WIOAR AHMAD. J:-. Petitioner Khushal has filed this bail petition seeking his post arrest bail in case FIR No.3 13 dated 27 .02.2025 registered under Sections 11-B KP CNSA 20191 15 AA, at Police Station City Charsadda.

2.As per contents of murasila, on receiving spy information regarding presence of petitioner (required in criminal cases FIR No.1786124 registered under Sections 398139914001401 PPC and FIR No.2078124 registered under Section 324 PPC) local police rushed to the spot where petitioner on seeing police party tried to decamp from the spot but he was over powered. His search led to recovery of a

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pistol .30 bore bearing No.A5552 alongwith four cartridges from his trouser fold (Bada Shalwar) and 717 grams Ice (meth amphetamine) from the shopping bug held by petitioner in his hand.

Contraband alongwith pistol and cartridges were taken into custody, petitioner was alrested in above case and present case vide FIR mentioned above was also registered against him.

3.Learned counsel for Petitioner

vehemently contended that when the local police had reached the spot, it has been mentioned in FIR that petitioner, on noticing the police p*Ly had tried to decamp from the spot and while being chased he had been arrested and contraband and pistol recovered from him. Learned counsel added that it was strange that when petitioner was running from the police why had he not been throwing away the shopping bag allegedly containing contraband. He stated that such a story set by prosecution was not appealable to a prudent mind and the case was planted one' Learned counsel for petitioner also stated that Khyber pakhtunkhwa control of Narcotic Substances

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(Amendment) Act 2025 was providing punishment of less than 10 years for quantity of psychotropic substance recovered from petitioner therefore, the offence would also be not falling under prohibitory clause of Section 497 Cr.PC.

4.Learned AAG appearing on behalf of the State opposed contention of learned counsel for petitioner.

3.Arguments heard and available

record perused.

6.Perusal of record reveals that

petitioner had allegedly been found in possession of 7I7 grams Ice and a pistol 30 bore with cartridges without license. So far as first arguments of learned counsel for petitioner is concerned, same would require deeper appraisal of evidence and such a plea cannot be entertained at this stage, pafiicularly when there is nothing available on record to suggest that the case had wrongly been planted against petitioner. The second argument raised by learned counsel for petitioner however requires consideration. Legislature has amended Khyber Pakhtunkhwa BA 72O2-Pt2O25.

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Control of Narcotic Substance Act 2}lg (hereinafter referred to as the Act) through Khyber Pakhtunkhwa Control of Narcotic Substance (Amendment) Act 2025 (hereinafter referred to as Amending Act) wherein sentence for contravention of Section l0 of the Act has been amended and for possessing psychotropic substance of quantity ranging from 100 grams to 500 grams new punishment of 5 years alongwith fine have been provided. One of the effect of reduction of sentence would naturally be relating to grant of bail. Earlier Section ll-B KP CNSA 2019 was providing sentence of imprisonment for not less than 10 years for possessing a quantity of meth amphetamine ranging from 100 grams to one Kg. Earlier the offence was falling under the prohibitory clause of Section 497 Cr.PC while by now such an offence does not fall under the prohibitory clause of Section 497 Cr.PC.

Although the new Act was promulgated and published in official gazette on 27.03.2025 while the occurrence in case in hand had taken place on 24.03.2025 and due to said reasons the Act could

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not be applied to the offence in hand, but one aspect of the matter requires consideration of this case that at bail stage when this Court is receiving bails from two sets of accused i.e, one against whom cases had been registered before promulgation of the Amending Act of Z0Z5 and the other class is of those persoos, against whom similar cases in similar quantity has been registered after promulgation of the Amending Act 2025) a question arises i.e, whether persons in same class can be differentiated while granting bail to two sets of classes? It is by now well settled that grant of bail is a discretionary relief.

Section 26 of the Act was providing that provisions of Cr.PC would be applicable to proceedings under this Act except as otherwise provided in the Act. Sub-section 2 of Section 26 of KP CNSA 2019 was providing for grant of bail in the following words:

"(2) In the case of offences punishable under this Act, bail shall not ordinurily be granted unless the Special Court is of the opinion that it is a prima facie cose for the gront of bail and against the securi$ of a substantial amount."

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It is clear from above provision that Special Court can grant bail when it reaches the conclusion that the case is prima facie fit for grant of bail. The wordit g "prima facie case for grant of bail" have not been further defined in the Act and it has been left to the discretion of the Special Court to determine whether the case was found to be a fit case for grant of bail on tentative appraisal of record. A criminal Court while exercising discretion in bail matters does not act in vacuum but it has a whole bunch of principles and a full- fledged jurisprudence developed for regulating discretionary powers of Court in grantit g or refusing bail. Such principles have been developed over the years by Hon'ble Supreme Court of Pakistan and other Constitutional Courts of the country. One of the leading judgment was rendered in this respect in case of "Tariq Bashir and 5 others v. The State PLD 1995 SC 34 wherein it has been held;

nft is crystal clear that in bailable offences the grant of bail is a right and not favour, whereas in non- bailable offences the grant of bail is BA 72O2-Pt2O25.

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not o right but concession/grace. Section 497 Cr.P.C divided non- bailable offences into two categories i.e. (il offences punishable with death, imprisonment of lW or imprisonment for ten yeors and (ii) offences punishable with imprisonment for less than ten years, the principle to be deduced from this provision of low is that in ttott- bailahle offences falling in the second cotegory @unishable with imprisonment for less than ten years) the grant of bail is a rule and refwal ond exception. So the bail will be declined only in ertraordinarY and exceptional cases, for examPle:

(a)where there is likelihood of abscondance of the accusedl (b) where there is aPPrehension of the accused tamPering with the prosecution evidence;

(c)where there is danger of the offence being repeated if the accused is released on bail; and

(d)where the accused is a previous convict."

It has also been held in same judgment:

7.As regords the tirst categorY oJ offences (punishable with death, or imprisonment for lrfe, or with ten years' imprisonment) the provisions of section 497(1) are not punitive in iature. There is no concePt of punishment before iudgment in the criminal law of the land. The question of grant/refusal of 'nail is to -0, having determined iudiciouslY regard to the facts and circumstonces of each case. Where the prosecution satisfies the Court, that I there are reosonable grounds to believe that the accused has committed the crime

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falling in the "first category the Court must refuse bail. On the other hand where the occused satisties the Court that there are not reasonable grounds to believe that he is guilty of such offence, then the Court must release htm on' bail. For arriving at the conclusion as to whether or not there are reasonable, grounds to believe that the accused is guilty of offence punishable with deoth, imprisonment fo, lW or with ten years' imprisonment, the Court will not conduct o preliminary triaUinquiry but will only make tentative assessment, i.e. will look at the materisl collected by the police for and against the ilccused and be primo facie satistied that some tangible evidence con be offered which, d left unrebutted, may lead to the inference of guilt. Deeper appreciation of the, evidence and circumstances appearing in the cose is neither desirable nor permissible at bail stage. So, the Court will not minutely examine the merits of the cose or plea of defence at that stage.

8.The case-law on the subject of bail is very much clear that the bail order must be carefully balanced and weighed in scale of justice and requirement of relevant law. Reasonoble grounds mean grounds which appeal to o reosonable and prudenl mon.

Similar principles have also been reiterated in the cases of "Subhan Khan vs The State (2002 SCMR 1797) and "Zafar Iqbal vs Muhammad Anwar and others" reported as 2009 SCMR BA rzoz.Pf2oirs.

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1488 and "Muhammad Tanveer Versus The State" reported as 2017 SC 733.

7.One of the leading principle for regulating discretion in bail matters was that when the offence does not fall under the prohibitory clause of Section 497 Cr.PC then bail should be granted as a rule and refusal thereof should be an exception. In those cases, which falls under prohibitory clause, bail can only be granted when same calls for further inquiry in the matter or the accused is found entitled thereto for other reasons provided under the law like delay in disposal of trials etc. Coming back to the situation, we find two classes of accused i.e, those against whom cases have been registered before promulgation of the Amending Act and those against whom cases have been registered thereafter. There is no cavil with the proposition that the amended Act would not be ipso facto applicable to cases registered prior to promulgation of the Act however, when the matter comes to exercise of jurisdiction, then two classes of accused cannot be differentiated.

This Court cannot choose and set free on bail BA r2o2-Pf2o25.

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those inmates of jail kept in custody in narcotics case, against whom cases have been registered after promulgation of amended Act and cannot leave the other class of accused in similar quantity (of less than one Kg meth amphetamine) to remain in jail. This cannot be done in exercise of discretionary powers. So far as the matter of sentencing is concerned, that is a different affair and said matter is not before this Court, therefore, this Court would not comment on said issue unless brought before it and contested in duly instituted proceedings .

8.For these reasons the bail petition was allowed vide my short order of even date, which is reproduced as under:-

For reosons to be recorded lateron, this bail petition is allowed ond petitioner Khushal charged in cose FIR No.s13 dated 27.02.2025 registered under Sections 11-B KP CNSA 2019/ 15 AA at Police Station CiA Charsadda, is admitted to bail subject to furnishing bail bonds in the sum of Rs.400,000/- (fou, lac) with two sureties eoch in the like amount to the satisfaction of learned lllaqa/Duty Judicial Magistrate/trial Court, who shall BA 72O2-Pr2O2s.

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ensure that sureties are local, reliable and men of meon*"

Above observations are based on tentative assessment of rnaterial available on record of the case, which shall not influence mind of learned trial Court in any manner at the time of trial.

Announced.

GE

.Qayum N" (SB) Hon'ble Mn Jufiie Mqor Ahmad.

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