Younas Khan vs State

2013 M L D 48

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

YOUNAS KHAN---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No. 591 of 2011, decided on 18th April, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(b) & S.9(c)---Possession and trafficking of narcotics---Bail, grant of---Further inquiry---Borderline case---Charas weighing 1 kilogram was allegedly recovered from the accused---Present case was a borderline case between Ss. 9(b) and (c) of Control of Narcotic Substances Act, 1997---Punishment to be awarded for the offence was always in commensuration with the quantum of recovery of contraband/crime, and the quantum of punishment had to be determined by the Trial Court--- Questions as to whether in such like cases, accused would be liable to the maximum punishment provided for the offence; and whether the punishment in case of proof of the guilt after trial in circumstances would fall under the prohibitory clause, were questions requiring further probe--- Record was also silent as to whether accused was habitual or previous convict etc.---All such facts made the case against accused one of further inquiry---Accused was directed to be released on bail, in circumstances.

Arshad Hussain Yousafzai for Petitioner.

Malik Muhammad Rehan Awan for the State.

Date of hearing: 18th April, 2011.

JUDGMENT

MAZHAR ALAM KHAN MIANKHEL, J.---The petitioner, having failed to get the concession of bail from the Court of Additional Sessions Judge, Hangu, in case F.I.R. No.3 dated 11-3-2011 Police Station Hangu, registered under section 9(c) CNSA, has now filed instant petition for the said purpose.

As per contents of the F.I.R., the complainant Javed Hussain: IHC, during the course of 'nakabandi' near Shah Palace Hotel, stopped Suzuki No.3159-Peshawar-D for the purpose of checking and the personal search of petitioner led to the recovery of 1 k.g. charas.

3.The learned counsel for the petitioner as well as the State were heard and record of the case was gone through.

4.Perusal of the record would reveal that it is a border line case between sub-clauses (b) and (c) of section 9 CNSA, as the punishment to be awarded for the offence is always in commensuration with the quantum of recovery of contraband/crime and the quantum of punishment has to be determined by the trial Court. In such like cases whether the accused would be liable to the maximum punishment provided for the offence and also as to whether the punishment in case of proof of the guilt after trial in the circumstances would fall under the prohibitory clause are the questions requiring further probe, as punishment provided under section 9(c) CNSA 1997 varies according to the circumstances of the case commensurating with the quantity of recovery. The record is also silent as to whether the petitioner is a habitual or previous convict etc. and all these facts makes the case against him as that of further inquiry.

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.200,000 (Rs.two lacs) with two sureties each in the like amount to the satisfaction of Illaqa /Judicial /Duty Magistrate. The sureties shall be reliable and men of means.

HBT/394/P Bail granted.

A