' ANWAR ZAHEER JAMALI, J.---Notice of this Criminal Petition, seeking leave to appeal against the order dated 1-6-2010 passed by the High Court of Sindh at Karachi, granting bail to the respondent in Criminal Bail Application No,519 of 2010, was twice issued to the respondent. In response to it, today, Station House Officer, SITE-B, PS SITE Unit CCP, Karachi has appeared and submitted his report which shows that the respondent could not be served on account of his fake/incorrect residential address. On this, learned APG states that in the instant petition same address of respondent is given, which was shown by him in his bail application before High Court of Sindh.
Such statement seems to be correct and indicates that the respondent had deliberately disclosed his fake address in the bail application before the High Court in order to avoid service of process on him, and in this manner he has successfully avoided service of notice of this petition, whereby the said order of the trial Court dated 1-6-2010, admitting the respondent Javed Khan on bail has been challenged.
2. The perusal of impugned order reveals that charge has been levelled against the respondent for the recovery of 5-1/2 kgs of charas from his possession, but he has been released by the High Court on bail by holding that:-- "the offence, if any, will not fall within the prohibitory clause of section 497, Cr.P.C, therefore, the applicant is entitled for the concession of the bail."
' In this connection reliance has been placed upon the judgment of Lahore High Court reported as Ghulam Murtaza v. State (PLD 2009 Lahore 362). Such approach on the face of it seems to be arbitrary and contrary to the settled law as laid down by this Court. Needless to observe that narcotic substance of 5-1/2 kgs was alleged to have been recovered from the petitioner. According to section 6 of the Narcotic Substance Act, 1997, no one shall produce, manufacture, extract, prepare, possess etc. Narcotic drug, psychotropic substance or controlled substance except for medical, scientific or industrial purposes in any manner, so far so forth. Section 7 (ibid) puts prohibition of import or export of Narcotic drugs etc. Similarly, section 8 (ibid) puts prohibition on trafficking or financing the trafficking of narcotic drugs, etc. For ease of reference, the above referred provisions of law viz. Sections 6, 7 and 8 are reproduced below:-- "6. Prohibition of possession of narcotic drugs, etc.-No one shall produce, manufacture, extract, prepare, possess, offer for sale, sell, purchase, distribute, deliver on any terms whatsoever, transport, dispatch, any narcotic drug, psychotropic substance or controlled substance, except for medical, scientific or industrial purposes in the manner and subject to such conditions as may be specified by or under this Act or any other law for the time being in force.
7. Prohibition of import or export of narcotic drugs, etc:-(1) No one shall---
(a) import into Pakistan
(b) export from Pakistan
(c) transport within Pakistan
(d) transship, ' any narcotic drug, psychotropic substance or controlled substance save in accordance with rules made under subsection (2) and in accordance with the conditions of any licence, permit or authorization for that purpose which may be required to be obtained under those rules.
(2) The Federal Government may make rules permitting and regulating the import into and export from Pakistan, transport within Pakistan and transshipment of narcotic drugs, Psychotropic substance or controlled substances, and such rules may prescribe the ports or places at which any kind of narcotic drug, psychotropic substance or controlled substance may be imported, exported, transported within Pakistan or transshipped, the form and conditions of licence, permit or authorities by which such licences, permits or authorization may be granted, the fees that may be charged therefor, any other matter required to have effective control of the Federal Government over such import, export, transportation and transshipment.
8. Prohibition on trafficking or financing the trafficking of narcotic drugs, etc:-No one Shall---
(a) Organize, manage, traffic in, or finance the import, transport, manufacturing or trafficking of, narcotic drugs, psychotropic substances or controlled substances; or
(b) use violence or arms for committing or attempt to commit an offence punishable under this Act."
3. Moreover, according to section 9 of the Act (ibid), whoever contravenes the provisions of sections 6, 7 and 8 shall under clause (a) of section 9, be punished for 2 years, if quantity of such substance is one hundred grams or less, in case it does not exceeds one kilogram, under clause
(b) of section 9, upto seven years, and if the quantity exceeds one kilogram, either for death, imprisonment for life or for a term which may extend to fourteen years with fine as provided in clause (c) of section 9 (ibid), which is reproduced herein below:-- "9(c). Death or imprisonment for life, or imprisonment for a term which may extend to fourteen years and shall also be liable to fine which may be up to one million rupees, if the quantity of narcotic drug, psychotropic substance or controlled substance exceeds the limits specified in clause (b): ' Provided that if the quantity exceeds ten kilograms the punishment shall not be less than imprisonment for life."
4. Having gone through the above provisions of law, we do not feel persuaded to agree that the case of the petitioner will not fall within prohibitory clause of section 497, Cr.P.C, but it shall be covered by section 9(c), providing for various sentences as reproduced above, which not only squarely fall within prohibitory clause of section 497, Cr.P.C. But also attract the bar contained in section 51(1) of the Act of 1997, specifically made applicable to those offences which, inter alia, provide for punishment of death sentence. For ease of reference, the said provision of law is reproduced as under:-- "51(1). Notwithstanding anything contained in sections 496 and 497 of the Criminal Procedure Code, 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."
' When the law makers have provided some special provision in the statute to bar the jurisdiction of special Court established under the said enactment, due weight is to be given to such special provision of law 4 against general principles governing such cases, when accused approaches the Special Court or the High Court for grant of bail, as in the instant case.
5. Looking to the admitted facts of the case of respondent and the above discussed clear legal position, the approach of High Court in releasing the respondent on bail on the above referred ground, seems to be arbitrary, without application of mind and, contrary to settled principles of law, thus unsustainable.
6. Keeping in view what has been discussed above, this criminal petition for leave is converted into appeal and allowed in the terms that impugned order dated 1-6-2010 admitting the respondent to bail is set aside and his bail application before the High Court is dismissed. Trial Court is directed to immediately issue process for the arrest of respondent to face the trial, and in case of failure to procure his attendance within two months, to initiate action in accordance with law for the recovery of surety amount from the person who stood surety for him in response to the impugned order dated 1-6-2010.
7. Compliance of this order be reported to the Deputy Registrar of this Court at Karachi Registry for our perusal.