' The petitioner is involved in case F.I.R. No,106 of 2004; registered at Police Station, Factory Area, Sargodha, on 23-6-2004 under section 9(b) of the Control of Narcotic Substances Act, 1997.
2. The petitioner has filed an application for post-arrest bail before the learned Addl: Sessions Judge, Sargodha, who dismissed the same vide order dated 21-7-2004. Hence, this bail petition.
3. The contents of F.I.R. Reveal that 125 grams Heroin was recovered from the petitioner at the spot by the police party, who conducted the raid along with lady constable, on spy information and arrested her.
4. The learned counsel of the petitioner submits that according to the contents of F.I.R., the petitioner is drug seller, who had been selling the Heroin before her house on 23-6-2004 at 3-40 p.m. And the said Heroin was recovered from her possession on her personal search. He further submits that the recovery was effected from the petitioner without associating the independent witnesses of the locality, which is in violation of section 103, Cr.P.C. He further submits that section 497, Cr.P.C. Stands amended in terms of woman, who is entitled to bail in offence, where the case does not fall within the prohibitory clause, in view of N.A. Bill No,12 of 2003 Code of Criminal Procedure (Second Amendment) Act, 2003. He further submits that the petitioner is previously non- convict and has suckling baby. He further submits that the investigation was not conducted by Investigating Officer in accordance with law and in fact, it was conducted in violation of sections 21 and 25 of C.N.S.A., 1997. He further submits that the learned trial Court rejected the bail petition of the petitioner merely on the ground that there are six cases of such like nature against the petitioner, which is not inconsonance with law laid down by the Superior Courts. In support of his contention, he relied upon "Mst. Fahmida Begum v. The State" 1997 SCM R 947. He further submits that the case of the petitioner does not fall within prohibitory clause of section 497, Cr.P.C.
Therefore, the petitioner is entitled for the grant of bail. In support of his contention, he relied upon "Subhan Khan v. The State" 2002 SCM R 1797. He further submits that at the time of deciding the bail application, the Courts are not supposed to keep in view maximum sentence provided under the law. In support of his contention, he relied upon "Shadi Khan v. The State" 2002 PCr.LJ 147.
5. The learned Law Officer submits that the counsel of the petitioner relied upon N.A. Bill No,12 of 2003 Code of Criminal Procedure (Second Amendment) Act, 2003, which has not been passed by the legislative bodies, therefore, the petitioner is not entitled for bail on the basis of bill submitted in N.A. Qua amendment in section 497, Cr.P.C. He further submits that the amendment was presented in the N.A. In amendment of sections 497/498, Cr.P.C., whereas the petitioner is involved in case which was registered under C.N.S.A., 1997, wherein by virtue of section 51 and provisions of sections 497/498, Cr.P.C. Are not applicable. Section 51 prescribed special circumstance to grant a bail to the accused person. He further submits that special law excludes general law. In support of his contention, he relied upon "I.G. Police, Punjab, Lahore and others v. Mushtaq Ahmad Warraich and others" PLD 1985 SC 159. He further submits that exception prescribed under section 497, Cr.P.C. With regard to female, is not attracted in the present case, in view of section 51 of C.N.S.A., 1997. In support of his contention, he relied upon "Haji Naik Muhammad v. The State" 2001 PCr.LJ 1160 and "Gull Saif v. The State" 2002 PCr.LJ 1680.
6. The learned counsel of the petitioner in rebuttal submits that offence is not made out against the petitioner and petitioner has a good prima facie case on merit as the contents of F.I.R. Do not constitute any offence against the petitioner as the recovery of alleged Heroin was effected from the petitioner in violation of section 103, Cr.P.C.
7. We have given our anxious consideration to the contentions of learned counsel of the parties and perused the record.
8. It is better and appropriate to reproduce the heading of bill as mentioned above and section 51 of C.N.S.A., 1997 to resolve the present controversy:- "N.A. Bill No,12 of 2003 Code of Criminal Procedure (Second Amendment) Act, 2003."
2. Amendment of section 497, Act V of 1898:---
(1) In the Code of Criminal Procedure, 1898 (Act V of 1898) in section 497 in subsection (1):- ' After the word and comma "bail" occurring for the first time, the words and comma "provided that a woman accused of such an offence punishable with imprisonment of less than ten years shall be released on bail", shall be inserted: ' Section 51 ' No bail to be granted in respect of certain offence:---
(1) Notwithstanding anything contained in sections 496 and 497, Cr.P.C., 1898 (V of 1898), bail shall not be granted to an accused person charged with an offence under this Act or under any other law relating to narcotics where the offence is punishable with death.
(2) hi the case of other offences punishable under this Act, bail shall not be normally granted unless the Court is of the opinion that it is a fit case for the grant of bail and against the security of a substantial amount."
It is admitted fact that the petitioner has failed to bring on record that section 497, Cr.P.C. Has been amended by the competent legislative body in terms of National Assembly Bill of 2003 as mentioned above, therefore, contention of learned Additional Advocate-General has force and the petitioner is not entitled to bail on the basis of bill submitted in the National Assembly. It is also settled principle of law that special law excludes the general law. In arriving to this conclusion, we are fortified by the law laid down in "Zia-ur-Relunan's case" PLD 1973 SC 49 and "Mian Nawaz Sharif's case" PLD 1993 SC 473. The condition precedent to grant a bail to accused person involved in case registered against her/him under the provisions of C.N.S.A., 1997 by virtue of section 51(2), in case, offence is punishable under said Act (C.N.S.A., 1997), then bail shall not be normally granted unless the Court is of the opinion that it is a fit case for the grant of bail and against the security of substantial amount. It is pertinent to mention here that 125 grams Heroin was recovered from the possession of the petitioner, therefore, in our opinion, it is not a fit case for the grant of bail. In arriving to this conclusion, we are fortified by the law laid down by this Court in "Robina Kausar v.
The State" 2002 PCr.LJ 746. The relevant observations is as follow:- ' Accordingly the petition fails and is hereby dismissed. However, this order shall not debar the petitioner to approach the Court of competent jurisdiction for the redressal of her grievance."
' The aforesaid proposition of law is also supported by the law laid down by Division Bench of this Court after considering all the case-law on the subject in "Nazar Hussain's case 2002 PCr.LJ 440.
"As per prosecution version, 1500 grams Charas has been recovered at the instance of petitioner.
The bail is being sought mainly on the grounds that she is a lady and has given birth to a childe as well as non-observance of provisions of section 103, Cr.P.C. Both the aforementioned authorities have been produced in support of said contentions. So far as 1995 SCM R 973 is concerned, no doubt the relief of bail has been granted but that has been granted after more than 8 months of the arrest on 1-6-2001 and is in jail for the last two months and seven days. Thus, the facts in hand are not identical to the facts of the said authority. So far as 1995 SCM R 1414 is concerned that is also distinguishable as the said authority relates to final disposal of the case. Thus both the authorities do not come to the rescue of the petitioner. It is also fact that co-accused of the petitioner i.e, her husband is still on pre-arrest bail. Keeping in view the attending circumstances of this case, we are not inclined to grant bail to the petitioner at this stage.
9. It is also settled principle of law that each and every case is to be decided on its own peculiar circumstances and facts. The cases relied by the learned counsel of the petitioner, are distinguished on facts and law keeping in view the quantity of Heroin recovered from the petitioner as compared to cited cases as per law laid down by the Honourable Supreme Court in "Trustees of Port of Karachi v. Muhammad Saleem" 1994 SCM R 2213.
10. In view of what has been discussed above, this bail petition has no merit and the same is dismissed.
11. The order of learned Additional Sessions Judge dated 21-7-2004 reveals that the challan is complete. In this view of the matter, in case the police has not submitted challan before the competent Court, then Investigating Agency is directed to send challan in the Court concerned within 15 days after receiving the order of this Court. In case, the challan has already been submitted before the competent Court, then the competent Court is directed to decide the case within 2 months after receiving the order of this Court even at the cost of day-to-day proceedings in view of the special circumstances of this case as the petitioner is in jail along with her suckling baby. With these observations, this bail petition is disposed of.