Safir Khan vs State

2011 M L D 365

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

SAFIR KHAN---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 1517 of 2010, decided on 12th November, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotics---Bail, grant of---Further inquiry---Two Kg charas was allegedly recovered from accused---Case of accused was that of further inquiry while considering the quantum of recovery, as the punishment provided for the offence was always in commensurate with the quantum of recovery of contraband---Question as to whether accused would be liable to the maximum punishment provided for the offence, was a question requiring further probe--- Punishment in case of proof of the guilt after trial, in circumstances, would fall under the prohibitory clause of S.497, Cr. P. C. as punishment provided in S.9(c) of Control of Narcotic Substances Act, 1997 varied according to the circumstances of the case---Court had discretion to punish accused in commensurate with the quantity of recovery--- Concession of bail to accused, could be allowed unless any special circumstances appeared in any particular case, like the case of a habitual offender or previous convict etc.--- Accused was released on bail, in circumstances.

Arshad Hussain Yousafzai for Petitioner.

Naveed Akhtar A.A.-G. for Respondent.

Date of hearing: 12th November, 2010.

JUDGMENT

MAZHAR ALAM KHAN MIANKHEL, J.---The petitioner herein involved in case F.I.R. No. 1272 dated 28-9-2010, Police Station Agha Mir Jani Shah, Peshawar, under section 9(c) C. N. S.A. after refusal of bail by the forum below has moved the instant petition for his release on bail.

2.On receipt of information while on patrol duty, Sajid Khan, A.S.-I., along with police party rushed to the spot and recovered 2-kg chars from the accused petitioner. He was arrested on the spot and a case vide F.I.R. ibid was registered against him.

3.Mr. Arshad Hussain Yotisafzai, counsel for the petitioner and learned A.A.-G. for State were heard and record of the case was perused.

4.Case of accused petitioner is that of further inquiry while considering the quantum of recovery, as the punishment provided for the offence is always in commensuration with the quantum of recovery of contraband/crime. In such like cases whether the accused would be liable to the maximum punishment provided for the offence remains the question requiring further probe and also whether the punishment in case of proof of the guilt after trial in the circumstances would fall under the prohibitory clause, as punishment provided in section 9(c) C.N.S.A. 1997 varies according to the circumstances of the case and it comes to the judicial discretion of the Court to punish the accused in commensuration with the quantity of recovery. Section 9(c) reads as under:

"(9) Punishment for contravention of sections 6, 7 and 8.---Whoever contravenes the provisions of sections 6, 7 or 8 shall be punishable with

(a)-------------------

(b)imprisonment which may extend to seven years and shall also be liable to fine, if the quantity of the narcotic drug, psychotropic substance or controlled substance exceeds one hundred grams but does not exceed one kilogram;

(c)death or imprisonment for life or imprisonment for a term which may extend to fourteen years and shall also be liable to fine which may be upto one million rupees, if the quantity of narcotic drug, psychotropic substance or controlled substance exceeds the limits specified in clause (b):

Provided that if the quantity exceeds ten kilograms the punishment shall not be less than imprisonment for life.

In such like cases it remained the practice to extend the concession of bail to the accused unless

any special circumstance appear in any particular case like the case of a habitual offender or pervious convict etc.

5.So, this application for .bail is allowed and the petitioner is directed to be released on bail subject to furnishing bail bond in the sum of Rs.300,000 with two sureties, each in the like amount, to the satisfaction of Illaqa Judicial Magistrate/Magistrate on duty. The sureties shall be reliable and men of means.

6.These were the detailed reasons for short order of even date i.e. 12-11-2010.

H.B.T./383/P Bail granted.