The petitioner namely Nazakat Ali alias Jaqu seeks post-arrest bail in case FIR No.169 dated 17.09.2014, offence under Section 9(c) of The Control of Narcotic Substances Act, 1997, registered at Police Station Nidoke, District Narowal.
2. Precisely the allegations against the petitioner are that from his possession Charas weighing 1180-grams was recovered.
3. Heard. Record perused.
4. As per prosecution story, on 17.09.2014 in pursuance to spy information the petitioner was apprehended and from a polythene envelope in his right hand a packet of Charas weighing 1180- grams was recovered. Record reveals that on previous count, the petitioner moved Crl.Misc.No.15315-B of 2014 which was dismissed having not been pressed vide order dated 03.12.2014. The said order is relevant for the decision of instant petition which is, therefore reproduced below:- "Learned Deputy Prosecutor General Punjab at the very outset submits that the petitioner is a previous convict in another case of identical nature.
2. When confronted with this situation, learned counsel for the petitioner does not press this petition. Dismissed, having not been pressed."
It is an admitted position that the petitioner was previously convicted in case FIR No.30/2008 offence under Section 9(a) of The Control of Narcotic Substances Act, 1997 registered at Police Station Niddoke, District Narowal. His conviction was recorded vide order dated 22.01.2010 passed by learned Judicial Magistrate Ist Class, Narowal whereby he was convicted and sentenced under Section 9(a) of The Control of Narcotic Substances Act, 1997 with imprisonment till rising of the Court and fine of Rs.200/-. Learned counsel for the petitioner with reference to Section 75 of The Pakistan Penal Code, 1860 and Sections 497 and 430 of The Code of Criminal Procedure, 1898 submitted that previous conviction cannot act as an absolute bar in enlarging the petitioner on post-arrest bail. With reference to these submissions, we have examined Section 75 of The Pakistan Penal Code, 1860. The said Section deals with the question of enhanced punishment for certain offences under Chapter XII or Chapter XVII after previous conviction and the same has no relevance with the proposition in hand.
5. So far reference to the provisions of Section 497 of The Code of Criminal Procedure, 1898 is concerned, learned counsel for the petitioner has laid his emphasis on the basis of third and fourth proviso to Section 497 of The Code of Criminal Procedure, 1898 and contended that previous conviction will only come into play in the cases enumerated in third proviso. There is no cavil that third and fourth provisos regulate the grant of bail on the basis of statutory delay in conclusion of the trial and fourth proviso clearly places bar in releasing an accused on the basis of statutory delay in conclusion of the trial, if he is previous convict. In the case in hand the petitioner is not claiming the bail on said ground as he was arrested on 17.09.2014 and right of statutory delay is not available to him. The petitioner has been charged with the alleged recovery of Charas weighing 1180-grams which clearly constitute offence under Section 9(c) of The Control of Narcotic Substances Act, 1997. Since the petitioner is a previous convict thus his case is covered in exceptional circumstances enumerated in the case of "TARIQ BASHIR and 5 others versus THE STATE" (PLD 1995 Supreme Court 34). Relevant extract from the same is reproduced below:- "It is crystal clear that in bailable offences the grant of bail is right and not favour, whereas in non- bailable offences the grant of bail is not a right but concession/grace. Section 497, Cr.P.C. divided non-bailable offences into two categories i.e. (i) offences punishable with death, imprisonment of life or imprisonment for ten years; and (ii) offences punishable with imprisonment for less than ten years. The principle to be deduced from this provision of law is that in non-bailable offences falling in the second category (punishable with imprisonment for less than ten years) the grant of bail is a rule and refusal an exception. So the bail will be declined only in extraordinary and exceptional cases, for example---
(a) where there is likelihood of abscondence of the accused;
(b) where there is apprehension of the accused tampering with the prosecution evidence;
(c) where there is danger of the offence being repeated if the accused is released on bail; and
(d) where the accused is previous convict"
It is manifestly clear from the above that if a person is previously convicted then his case clearly comes within the exceptions and there is no distinction whatsoever. We thus feel no hesitation to hold that the petitioner being previously convict is not entitled to the post-arrest bail and the bar enumerated in Section 51 of The Control of Narcotic Substances Act, 1997 clearly attracts to the case in hand.
6. The nutshell of above discussion is that the instant petition is without any merits and is hereby dismissed.