' Through this second application the petitioner, Malita Syed Shah, seeks her release on bail during the pendency of the case before the learned trial Court which was registered against her vide F.I.R.
No,4 dated 11-1-2008, under section 9(c)/15 of the Control of Narcotic Substances Act, 1997, at Police Station, ANF, Lahore, on the allegation that in an attempt to board herself in a flight for abroad at Allama Iqbal International Airport, Lahore she was found in possession of 20.875 k.g. Of heroin. The appellant-petitioner was arrested at the spot and thereafter necessary sampling of the contraband was also conducted. The petitioner's two minor children were also accompanying her who, according to the petition, are also with her in jail. As per contents of the petition, the earlier bail application i.e, Criminal Miscellaneous No,6236-B of 2009 was dismissed for non-prosecution on 11- 9-2008.
2. The grounds primarily raised in the petition are that the petitioner has been maliciously implicated in this case while she is innocent and has committed no offence as mentioned in the F.I.R. Reference has specifically been made to the female character of the petitioner and it has been asserted that she in view of the amended law under section 497, Cr.P.C. Has acquired an indefeasible right of bail because it is not covered by the exception given under section 497 Cr.P.C.
This argument is obviously based upon the provisions of Protection of Women Act, 2006.
3. The learned counsel has emphatically submitted that the two minor children of the petitioner are also languishing with her in the jail for no fault on their part and that there is no one-else outside the jail premises to retain their custody or to look them after because the petitioner has been deserted in her family life by the husband. It has also been asserted that no independent witness is available on record to substantiate the contentions as borne out by the complaint and in the absence of any evidence connecting the petitioner with the commission of the offence, the right to bail cannot be withheld simply to enhance the incarceration of the petitioner.
4. In this case the question of the confinement of the minor children with the petitioner in relation to her bail petition had arisen before the lower forums as well. Among the minors one is .Daughter about 11 years old and other is the son about five years of age. This issue was considered by the learned lower Court while it disposed of the bail application of the petitioner and prior to it in the very beginning of the case by the ANF Authorities as well by the learned Magistrate at the time of remanding the petitioner to judicial custody. The copies of documents relevant in this behalf have been placed on the record of this petition. It was mentioned therein that the petitioner was adamant to retain the custody of both the children with her at any cost.
' The petitioner is married to a Pakistani national and the marriage admittedly subsists. As to the father of children who is their natural guardian, it is neither asserted nor is there anything on record to show that he is not available for holding their custody. The children are not suckling babies who cannot survive without the lap of their mother. It may also not be ignored that in case bail in the narcotic case is allowed for the reason of the custody of a little grownup children also, it may pave the way and provide a lever for malicious contentions on behalf of the female accused of possession or transportation of narcotics, for their release on bail, especially for the foreign nationals who may very safely flee away after getting the bail. Considering matter in its full perspective we are not inclined to accept the plea of learned counsel on this issue.
5. Besides the above contentions, the learned counsel for the petitioner has also referred to section 5A(8) and section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, in comparison to sections 47 and 51 of the Control of Narcotic Substances Act, 1997, with a view to bring the petitioner's case within the ambit of section 497, Cr.P.C. On the basis of which the plea for bail could be maintained.
6. The thrust of argument of the learned counsel was that the provisions of section 5A(8) of the Act, 1975 were pari materia with those of section 51 of the Control of Narcotic Substances Act, 1997 which has imposed a bar on the concession of bail and has contended that in relation to the former provisions it is a settled law that the same cannot displace section 497, Cr.P.C. Except for what is in conflict with it. According to the learned counsel, the concession provided under first and the third proviso to section 497, Cr.P.C. Therefore, cannot be eliminated simply because of the bar created by section 51 of the C.N.S.A. Relying upon the case of The State v. Syed Qaim Ali Shah (1992 SCM R 2192), the learned counsel, dilated upon the manner of interpreting and to draw the meaning of a statute and argued that in order to know what a statute does mean, it is one important step to know what it does not mean; and if it be quite clear that there is something which it does not mean, then that which is suggested or supposed to be what it does mean must be in harmony and consistent with what it is clear that it does not mean and also that what it forbids must be consistent with what it permits.
7. The learned counsel was accordingly of .The view that the prohibition of section 51 C.N.S.A. Is not a bar to the grant of bail to the petitioner because what it forbids is not consistent with what the law permits. The learned counsel reiterated that firstly the case duly fell under the coverage of the legal provision permitting the grant of bail and secondly that there was no chance of petitioner's absconding or proceedings abroad because all the relevant documents, including the passport etc. Were already in the custody of the ANF Authorities.
8. Without prejudice to the merits of the case it can be observed that the petitioner has been involved in a case for being in possession of the huge quantity of heroin, a contraband of the worst nature, and made an abortive attempt for its transportation abroad. Thus at this stage it is not possible to infer that the case is totally based upon false evidence or that it is a case of no evidence. In relation to the argument of the learned counsel for the petitioner that by virtue of the provisos added to section 497, Cr.P.C. Through the Protection of Women Act, 2006, the petitioner is entitled to be released on bail as a matter of right it would be appropriate to first refer to those provisions. The provisions as inserted in section 497, Cr.P.C. May, for facility of reference, be reproduced hereunder:-- "497. When bail may be taken in cases of non-bailable offences (1)-- ' Provided that---------- ' Provided further that---- ' Provided further that a woman accused of such an offence shall be released on bail, as if the offence is bailable, notwithstanding anything contained in Schedule-II to this Code or any other law for the time being in force: 'Provided further that a woman may not be released if there appear reasonable grounds for believing that she has been guilty of an offence relating to terrorism, financial corruption and murder and such offence is punishable with death or imprisonment for life or imprisonment for ten years, unless having regard to the facts and circumstances of the case, the Court directs that she may be released on bail: ' Provided further that where a woman accused of an offence is refused bail under the foregoing proviso, she shall be released on bail if she has been detained for a continuous period of six months and whose trial for such offence has not been concluded, unless the Court is of the opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on her behalf."
' The emphasis of the learned counsel has been that the case against the petitioner is neither of "terrorism" nor of "financial corruption" or "murder" and as such the punishment provided therein is not an impediment to the grant of the bail to the petitioner. It has been argued that the bar so provided in the aforesaid provisions is not relatable to any offence other than the offences of three categories mentioned therein and that the right of bail is mandatorily available notwithstanding anything contained in Schedule-II of the Cr.P.C. Or any other law for the time being in force. The contention of the learned counsel is that the C.N.S.A. Falls within the ambit of "any other law" which is for the time being in force.
9. The contention raised with reference to the provisions of Protection of Women Act, 2006 an appropriate analysis of the same conjunctively with the provisions of the other related laws brings about a perspective which is not in harmony with the contention of the learned counsel for the petitioner. This issue was exhaustively dilated upon by a Division Bench, of this Court in Cr. Misc.
5299B/06 titled Zarina Bibi alias Jino Jatti v. The State and it was concluded that subsection (2) of section 51 C.N.S.A. Permitted the Courts to grant bail to the accused only when it considered it is a fit case- for the grant of bail and that too against security of substantial nature 'hut it does not permit the Court to release a person on bail on the ground of age, sex or health. It was further observed that the amendment of section 497, Cr.P.C. Through the Protection of Women Act, 2006 would not in any way enlarge the scope of section 51 of the C.N.S.A., 1997 which is a special law on the subject.
10. Having given our anxious thought to the aforementioned contentions of the learned counsel we are, thus, of the opinion that the amendment of section 497, Cr.P.C. Through the Protection of Women Act is not applicable to the cases under the Control of Narcotic Substances Act, 1997 and an accused involved in a case under the latter enactment cannot be released on bail unless the Court after examining the entire material brought on record comes to a tentative conclusion that the material to connect the accused with the commission of the offence is quite, lacking. That being so we are also not inclined to accept the B inference drawn by the learned counsel for the grant of bail under section 51 of the C.N.S.A. By conjunctive application of the provisions of section 5A(8) of the Suppression of Terrorist Activities (Special Courts) Act, 1975 and the other laws referred to by the learned counsel in that behalf.
11. For what has been discussed in the above we are of the view that the material available on the record prima facie connects the petitioner with the alleged offence and as such we do not find it a fit case for the grant of bail. The bail petition is, therefore, dismissed.