' Mst. Rafaqat Bibi petitioner seeks bail in case F.I.R. No, 1062 dated 3-11-2010 under section 9(c) of the Control of Narcotic Substances Act, 1997 registered at Police Station Shandara Town, Lahore.
2. Prosecution story as narrated in the F.I.R. Is that Allah Ditta, Sub-Inspector along with other police officials was on patrol' duty on 3-11-2010 when he received spy information that a lady sitting in front of her house was selling heroin. Upon this information a raid was conducted and the petitioner was found sitting on a cot in front of her house and was apprehended. Upon her search 1500 grams heroin was recovered. Out of the recovered quantity one gram was separated and sent to the Chemical Examiner for analysis.
3. Learned counsel for the petitioner primarily contended that she being lady was entitled to be released on bail as of right in view of amended provision of section 497, Cr.P.C. He also contended that at least 1/3rd of the recovered quantity should have been sent for analysis whereas only one gram of heroin was sent which is violative of law; that the petitioner was behind the bars for the last three months and that investigation was complete and person of the petitioner was no more required for the purpose of investigation. Learned counsel further contended that the petitioner is first offender and even her family has no previous criminal history. Learned counsel also argues that the petitioner has been falsely involved in this case due to mala fide by the police as the petitioner had made an application against some police officials of the area.
4. Conversely, the learned Deputy Prosecutor-General submits that provisions of section 497, Cr.P.C.
Are not applicable in cases of narcotics in view of section 51 of the Control of Narcotic Substances Act, 1997 and as such the petitioner is not entitled for bail on the said ground. Further submits that the petitioner was red-handed apprehended and huge quantity of heroin was recovered from her possession and report of the Chemical Examiner confirms that the substance recovered from the petitioner was heroin, hence the petitioner is not entitled to bail. Learned Deputy Prosecutor- General further submits that nothing has been brought on record during investigation to show that the local police was inimical towards the petitioner or it has any sort of or animosity to falsely implicate the petitioner in this case. Also submits that challan has been submitted and the trial is in progress, therefore the petitioner is not entitled to bail.
5. We have heard the learned counsel for the petitioner as also the learned Law Officer and gone through the record. We have also gone through the relevant provisions of law in the light of contentions of the learned counsel for the parties.
6. So far as contention of learned counsel for the petitioner that the petitioner being a woman is entitled to bail as a matter of right in view of amendment in section 497, Cr.P.C. Is concerned, the same is fallacious. For facility of reference the said provision of law is reproduced hereunder: "497. When bail may be taken in case of non-bailable offence. When any person accused of any non-bailable offence is arrested or detained without warrant by an Officer Incharge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years: ' Provided ..................................
' 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 so 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.
' We would also like to quote section 51 of the Control of Narcotic Substances Act, 1997 which runs as under:-- "51. No bail to be granted in respect of certain offences.---(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.
(2) In 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."
' A mere glance of above quoted section 51 would make it crystal clear that implication of section 497, Cr.P.C. Has been ousted from the cases relating to narcotics in which the offences are punishable with death. Needless to mention that the petitioner is alleged to have committed an offence under section 9(c) of the Control of Narcotic Substances Act which is punishable inter alia with death. It would not be out of place to mention here that section 51 relates to C.N.S.A. Which is a special law dealing only with the offences relating to narcotic drugs, psychotropic substances and to control the production, processing and trafficking of such drugs and substances whereas Criminal Procedure Code is a general law and a special law has always precedence over the general law. It has been held by the Hon'ble Supreme Court in The State v. Javed Khan (2010 SCM R 1989) that when the law makers provide 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 as against general principles governing such cases, when accused approaches the Special Court or the High Court for grant of bail. Thus the provisions of section 497, Cr.P.C. Are not applicable for the offences covered by the C.N.S.A. The next contention of the learned counsel that as per rules at least 1/3rd quantity of recovered narcotics should have been sent for analysis, has also no force. It has been held by the superior courts of the country that it would be just and proper that reasonable quantity of narcotic drug/controlled substance is sent to Chemical Examiner for analysis. Hence it is for the Chemical Examiner to determine as to whether one grain sample was sufficient for analysis or not. Report of the laboratory to the contrary would mean that even one gram was reasonable quantity for analysis. Even otherwise it was not the case of the petitioner that the recovered substance was not heroin rather it was her stand that the said narcotics had been planted upon her. The assertion of the learned counsel that the local police was inimical towards the petitioner because she had filed application against some police officials is also devoid of force. No specific incident or circumstance has been shown by the learned counsel to exist indicating that the police had any grudge against the petitioner. Even otherwise it is not probable that the police would plant such a huge quantity on the petitioner to falsely implicate her. Heroin is a concentrated form of narcotics and is a kind of drug which is not only eroding society of Pakistan but the world at large and it is unfortunate that women and kids have also associated/are being used by the drug paddlers in dealing business of such like deadly narcotics only considering that the law have soft corner for them. The petitioner was caught red- handed. Huge quantity of heroin was recovered from her. Although she or her family has no criminal record but we are afraid this is no ground to grant her bail. Positive report of the Chemical Examiner is also a circumstance which goes against the petitioner. Challan has been submitted in Court and trial is in progress. No case has been made out by the petitioner entitling her to the grant of bail. This petition is accordingly dismissed.