' Through the petition in hand, the petitioner seeks bail in case FIR No, 338 dated 29.05.2015 registered under Section 9(c) CNSA by Police Station Nasir Bagh Peshawar, after the said relief was refused to him by the learned Additional Sessions Judge-XI/Judge Special Court, Peshawar on 4.6.2015.
2. Allegation against the petitioner is that he was found in possession of heroin weighing 1200 grams, hence the FIR ibid was registered against him.
3. Learned counsel for the petitioner argued that the accused-petitioner has been falsely implicated in the case by the local police just to show their efficiency before the high ups as in fact no recovery has been effected from him; that no independent witness has been cited by the prosecution though the place of occurrence is a thickly populated one to lend support to the alleged recovery of heroin from the accused-petitioner; that the FSL report is not yet available on file to confirm as to whether the alleged contraband was heroin or otherwise and that keeping in view the recovery of meager quantity of contraband, the ultimate trial may not entail maximum sentence, therefore, the accused-petitioner is entitled to the concession of bail.
4. The learned AAG, on his turn, strongly resisted the bail petition and argued that the accused- petitioner was apprehended and 1200 grains of heroin were recovered from the shopping bag which was very much in his hand and that there was no mala fide on part of the prosecution to associate the said narcotics with him and that he is prima facie connected with the commission of the offence. He next contended that the offence for which the accused-petitioner is charged falls within the prohibitory clause of Section 497, Cr.P.C., therefore, he is not entitled to the concession of bail.
' Arguments heard and record perused.
5. No doubt the accused-petitioner is directly charged in the FIR and allegedly 1200 grams of heroin were recovered from him. However, without adverting to the factual aspects of the case as to whether the alleged contraband belonged to the accused-petitioner or not, the moot point for consideration before the Court at this stage is whether the accused-petitioner can be awarded the maximum sentence provided by the Statute, given the quantity of the alleged recovery effected from his possession. It needs no reiteration that the quantum of sentence has to be proportionate with the quantum of the recovered contraband and the natural proclivity of the Court should not be towards the maximum sentence provided by the Statute, but the one which is likely to be awarded to the accused at the conclusion of the trial in the peculiar facts and circumstances of a certain case. The ultimate conviction of an accused can safely make up for the loss that may have occurred due to mistaken relief by a Court. However, denial of bail to the petitioner at this stage would amount to his pre-trial conviction. Moreover, nothing is forthcoming at' the prosecution's end regarding the previous involvement of the petitioner in such like cases, therefore, he is held entitled to the concession of bail.
' For the reasons stated above, this bail application is allowed. The petitioner is directed to be released on bail provided he furnishes bail bonds in the sum of Rs, 200000/- (Two lac) with two sureties each in the like amount to the satisfaction of the learned trial Courts concerned.
(R.A.)