Muhammad Wali vs State

2010 Y L R 2130

[Peshawar]

Be f o r e Mazhar Alam Khan Miankhel, J

MUHAMMAD WALI---Petitioner

Versus

THE STATE---Respondent

Criminal Miscellaneous No. 554 of 2010, decided on 21st May, 2010.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession of narcotic---Bail, refusal of---Positive report of Forensic Science Laboratory had confirmed that the recovered substances were charas and heroin---While dealing with the bail application in such matters, the quantum of recovery should be kept in mind that it must commensurate with the quantum of punishment to be awarded after conclusion of the trial which made the case of accused beyond the scope of prohibition contained in S.497, Cr.P.C.- --Recovery of 80 grams of heroin in the shape of sachets along with currency notes of small denominations apparently suggested the prima facie involvement of accused in the practice of sale of narcotic substances and that too of heroin, which had crippled a fair chunk of youth and persons involved in such a menace, did not deserve any concessional treatment like bail- --Accused, however, would have a fair chance of his defence to prove his innocence before the Trial Court---Bail was refused.

Sheh Faisal Utmankhel for the Petitioner.

Fazlur Rehman, A.-A.G. for the State.

Date of hearing: 21st May, 2010.

JUDGMENT

MAZHAR ALAM KHAN MIANKHEL, J.---The petitioner herein seeks his release on bail in case F.I.R. No.705 dated 23-10-2009 registered under section 9 (c) CNSA, Police Station Gul Bahar, Peshawar.

2.The contentions of the learned counsel for the petitioner were that the samples of alleged recovery were sent to Forensic Science Laboratory with a delay of many days, no private person was associated to witness the alleged recovery which makes the case of the accused petitioner as that of further inquiry. He further submitted that the very investigation conducted in the case is against the provisions of Police Order. Since registration of the case, the prosecution has failed to submit its final report under the law before the trial Court which also entitles the accused petitioner to the grant of bail.

3.As on the other hand, the learned A.A.-G. while refuting the arguments of the learned counsel for the petitioner submitted that recovery was made from the immediate possession of the petitioner which was confirmed to be the narcotic substance by the report of Forensic Science Laboratory. He further submitted that prima facie case against the accused petitioner is proved regarding business of selling of contraband as the recovery of heroin was in the shape of sachets (puries) and cash recovery of currency notes in small denominations, that the Challan in the case is complete and would be submitted in the Court very soon.

4.After hearing the learned counsel for the parties and perusal of the record, it transpired that the contraband recovered from the accused petitioner falls under section 9(c) of CNSA 1997. There is positive report of Forensic Science Laboratory which confirms that the recovered substances were chars and heroin. As far as the recovery of 2 Kg of charas is concerned, there is a considered view of this Court that while dealing with the bail applications of the accused in such matters, the quantum of recovery should be kept in mind that it must commensurate with the quantum of punishment to be awarded after conclusion of the trial which makes the case of the accused beyond the scope of prohibition contained in section 497, Cr.P.C. But the recovery of 80 grams of heroin in the shape of sachets along with currency notes of small denominations apparently suggests the prima facie involvement of the accused petitioner in the practice of sale of narcotic substance and that too of heroin which has crippled a fair chunk of our youth and persons involved in such a menace don't deserve any concessional treatment like bail. The accused petitioner, however, would have a fair chance of his defence to prove this innocence before the trial Court.

5.Hence, the plea of bail of the accused in the light of reasons given above cannot be considered and this bail petition is accordingly dismissed. However, the prosecution is directed to submit the final report against the accused within a fortnight positively and the learned trial Court is also directed to conclude the trial within a period of one month after submission of challan with a hope that the above observations would not be a prejudicial factor against the accused.

H.B.T./175/P Bail refused.