Cr.Misc.B.A No. 442-B of Sharif Ullah alias Sharpy Vs The State

IN THE PESHAWAR HIGH COT]RT,

BANNU BENCH

(Judicial Department)

Cr.Misc:BA No.442-B of 2023

Sharif Ullah alias Sharpy Vs The State

OR"DER

Date of hearing I 8. 0 9.2023

For petitioner: Mr. Noor Zada Khan Ahmadzai Advocate

For State: Hafiz Muhammad Hanif, A.A.G.

:8 *:t *,t,* + FAZAL S J.--- Through this petition, the petitioner Sharif Ullah alias Sharpy is seeking his post arrest bail on fresh ground of delay ln conclusion of his trial in case FIR No.5l5 dated 01.09.2022 under section 9(d) / I 1(b) of the Khyber ? Pakhtunkhwa Control of Narcotic Substances Act, 2019 read with 15-AA of Police Station Latamber, District Karak.

2.Facts, as narrated in the FIR, are that on 01.09.2022, complainant Umer Nawaz KIan ASI received information regarding the involvement of petitioner in the sale of narcotics. Pursuant to the information he along with police contingent rushed to the spot and apprehended the petitioner, along

with a polythene bag in his hands which contained five packets of charas, each weighing 1375 grams, 1291 grams, 1330 grams, 1310 grams and ll38 grams (total 6444 grams) and methamphetamine (ice) weighing 148 grams. Upon physical search, sale proceeds of Rs.6200/- and a .30 bore pistol bearing No.l2l4lAR with fit magazine containing 06 live rounds of the same bore were also recovered from his side pocket. From all the recovered narcotics samples were separated and sealed in different parcels while the remaining chars and Ice were sealed in different parcels. The matter was reduced into writing in shape of murasila and sent to the police station for registration of case.

3.Arguments of leamed counsel for the petitioner and AAG for the State heard and record perused.

4.Leamed counsel for petitioner in his arguments submitted that bail application of the petitioner on merits was dismissed up to this Court and vide order dated 20.7.2023 in Cr. Misc: B.A No.l l3-8/2023 this Court while declining bail to the petitioner issued directions to the prosecution for conclusion of trial within 3 months, however, thereafter only statement of one Umer Nawaz ASI

has been recorded during the trial. He contended that petitioner was arrested on 01.9.2022 and delay in conclusion of trial has not been occasioned, attributable to the petitioner or any person acting on his behalf and, therefore, as the allegation of recovery of 6444 grams chars and 148 grams Ice is made against the petitioner and the quantity alleged to have been recovered is less than l0 kilograms, therefore, part (a) of 3'd proviso to section +,Sl 1t7 Cr.P.C is attracted to the case of petitioner and as he has already remained in continuous custody for more than one year, therefore, petitioner deserve the grant of bail on the ground of statutory delay in conclusion of trial. In support of his arguments reliance was placed on the judgment of this Court in the case "Javed Khan-Vs-the State" reported in 2022 YLR 1655, Peshawar (D.I.Iftan Bench).

5.Leamed AAG for state to some extent conceded that the quantity recovered from the petitioner is less than l0 Kgs and in such a situation part (a) of 3'd proviso to section 497 (l) Cr.P.C would be attracted, however, he while opposing the instant bail petition submitted that trial of the petitioner is already in progress and is to be

concluded shortly and, therefore, petitioner may not be released on bail.

6.After hearing arguments and tentative assessment of record it is inefutable fact on record that petitioner was arrested on 01.9.2022 and since then he is languishing behind the bars, whereas conclusion ofthe trial against him is not yet in sight.

The quantity allegedly recovered from the petitioner is less than l0 kilograms and, therefore, his case squarely falls under part (a) of3'd proviso to section 497 (l) Cr.P.C and the benefit of said proviso, which is mandatory in law, has to be extended to the petitioner. This Court has already extended the benefit of bail on the ground of statutory delay in the case relied upon by the leamed counsel for petitiorier, in the case of "Shakeel Shah-Vs-Te State & others" reported in 2022 SMR l. a principle that in the matter of offence not punishable with death and the trial of the accused is not concluded within a period of one (l) year from the date of arrest/ detention and the trial is not concluded then the law laid down in part (a) of3'd proviso to section 497 (l) CI.P.C mandates the release of accused on bail, subject to of course, 4th proviso to the said section.

7.In view ofthe above the petitioner who has already remained in custody for more than one (l) year and his trial is not concluded, deserves the concession of bail on the ground of statutory delay, hence this petition is accepted and the petitioner is released on bail provided he furnishes bail bonds amounting to Rs.5,00,000/- (five lac) with two sureties each in the like amount to the satisfaction of Illaqa Judicial Magistrate/NlOD concerned.

Announced

(Ihsan)

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JUDGE

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(S.B) Hon'blc Mr. Justice Fazal Subhan