' HAFIZ ABDUL REHMAN ANSARI, J.---Through this petition, the petitioner, namely, Faiz Bakhsh alias Faizoo son of Muhammad Bakhsh seeks post-arrest bail in case F.I.R. No.223 of 2009 dated 8-6- 2009 registered at Police Station Saddar, Muzaffargarh, under Articles 3/4 of Prohibition (Enforcement of Hadd) Order No.4 of 1979.
2. Brief facts as unfolded in the F.I.R. Are a case was registered by Muhammad Arshad, S.-I., that he was present in Mouza Din Pur along with police officials for patrolling duty, a spy informed that Faiz Bakhsh alias Faizoo son of Muhammad Bakhsh present petitioner was selling Bhang, if raid was conducted, he could be arrested. On receipt of information, he along with other police officials and spy, reached at the place where allegedly petitioner was selling narcotics. On pointation of spy, a person was taken into custody, who told his name later on Faiz Bakhsh alias Faizoo son of Muhammad Bakhsh caste Bhatti resident of Mauza Din Pur. On seeing the police party, he slipped towards western side but he was caught hold of and from his plastic bag Bhang weighing 4-kg was recovered from his possession, 100 grams. Bhang was separated for sample to be sent to chemical examiner.
3. The petitioner first applied for his post arrest bail before the Judicial Magistrate, Muzaffargarh, which was declined on the ground that section 9-C of Control of Narcotics Substances Act, 1997 is attracted to the facts of the case. Later on, petitioner applied for post arrest bail before the learned Sessions Judge, Muzaffargarh, which was dismissed by learned Additional Sessions Judge, Muzaffargarh vide order dated 13-7-2009, hence, this bail petition for post arrest bail before this Court.
4. Petitioner's counsel submits that false case has been registered against him and he is not involved in the case; that the offence does not fall within the Prohibitory Clause of section 497(1), Cr.P.C.; that fake recovery of Bhang has been planted against the petitioner just to show their efficiency; that the case does not fall within the ambit of Article 3 of Prohibition (Enforcement of Hadd) Order No.4 of 1979 as Bhang is never manufactured while Article 4 is bailable in nature; that the petitioner is 70 years old; that he is no more required for the purpose of investigation; that the offence allegedly committed by him does not fall within the purview of section 9-C of Control of Narcotic Substances Act, 1997; that the offence charged against the petitioner provides maximum punishment upto three years, therefore, the petitioner is entitled to the concession of bail. Reliance is placed on PLD 1998 Karachi 187, PLJ 200 Cr.C, Peshawar 945 and 2000 PCr.LJ 760.
5. On the other hand, learned Deputy District Public Prosecutor vehemently opposed the bail on the ground that petitioner is found guilty; further submits that although the judgment cited by the petitioner's counsel, in those it has been held by the Hon'ble Sindh High Court as well as Peshawar High Court, the Bhang is not included in the Schedule of Control of Narcotic Substances Act, 1997.
Learned Deputy District Public Prosecutor made reliance on case decided by the honourable Lahore High Court in Criminal Appeal No.284/1/08 titled as Ghulam Murtaza v. The State wherein Full Bench of Lahore High Court while deciding the said criminal appeal has included Bhang in the contraband narcotics substances. The learned Bench has categorized the sentences for each contraband narcotic substances in proportionate to the quantum of contraband narcotics recovered from the accused including the Bhang. The Hon'ble Lahore High Court has categorized the offences under sections 9(a), 9(b) and 9(c) of C.N.S.A.
1997.
6. I have heard the learned counsel for the parties and perused the record.
7. Petitioner is an old man of near-about 70 years of age in which the man is A always considered infirm which is also a ground for bail. Infirmity of man is mentioned in the proviso of section 497, Cr.P.C., however, in the Full Court Judgment of Lahore High Court titled as Ghulam Murtaza v. The State. Maximum sentences categorized for recovery of 4-kg, Bhang is given 4 years' R.I. And fine of Rs.9,000 or in default S.I. For 4 months and 15 days. Making reliance on the judgment of Hon'ble Supreme Court reported as Tariq etc. v. The State (PLD 1995 SC 34) and Imtiaz Ahmed and another v. The State (PLD 1997 SC 545) a few lines from the referred Tariq Bashir's case (supra) are reproduced hereunder:- "The ultimate conviction and incarceration of a guilty person can repair the wrong caused by as mistaken relief of interim to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case, albeit his acquittal in the long run."
' Further few lines from the referred Imtiaz Ahmed's case (supra) are reproduced hereunder:- "Even in case where a person is accused of non-bailable offence and the case does not fall within the prohibitory clause, meaning thereby that the punishment prescribed for the offence is neither death nor imprisonment for life nor 10 years, the grant of bail in such cases is a rule and refusal is an exception. My learned brother has referred in his judgment the decision of this Court in the case of Tariq Bashir v. The State PLD 1995 SC 34, which also lends support to the above view taken by me.
It is, therefore, quite clear that refusal of bail to a person in a case where he is entitled to its grant as of right, can only be justified on some statutory provision or on grounds strictly relatable to the holding of a just and fair trial. Such refusal cannot be justified on any high principles of ethics or morality. "
8. In the light of the said judgments the petitioner cannot be kept behind the bars as punishment as he is behind the bars for the last many months. The case cited by the prosecution of Lahore High Court Lahore reported PLD 2009 Lahore 362 no doubt Bhang is including in the categories of contraband narcotics substances but maximum sentence given in the said judgment is 4 years for recovery of 4-kg of Bhang, as such, the offence does not fall within the Prohibitory Clause. However, the challan of the case is submitted before the learned trial Court, petitioner is no more required for any investigation, keeping him behind the bars further will not serve any useful purpose. Keeping in view the old age of the petitioner, maximum sentence for the offence is, 4 years R.I., 4-kg Bhang is determined by the Hon'ble Lahore High Court Lahore in the Judgment according to which offence does not fall within the prohibitory clause.
9. Resultantly, this petition is accepted and the petitioner is admitted to post arrest bail subject to his furnishing bail bonds in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of the learned trial Court. However, it is made clear that the observations made above are tentative in nature, will not prejudice the case of the either side.