' The petitioner is an accused in case F.I.R. No,185, registered at Police Station Cantt. Rawalpindi on 17-9-1988 under Article 3/4 of the Prohibition (Enforcement of Hadd) Order 1979. He was allegedly found in possession of 500 grams of heroin when he was apprehended on suspicion and searched by the police.
2. His hail has mainly been sought on the ground that the maximum statutory period of his detention as an under-trial has elapsed and his case has not yet been decided by the trial Court, nor it is likely to he decided by it in the near future because its Presiding Officer is busy in attending a long training course.
3. During the course of arguments a question has cropped up as to whether this case is to he tried by a Court of Session, where it is now being tried, or by a Magistrate Section 30. I have asked the learned counsel representing the parties to address elaborate arguments on this point and both of them have jointly referred to the following rulings of the Federal Shariat Court:-- Muhammad Riaz v. The State PLD 1985 FSC 420, Ejaz Hussain v. The State 1986 P Cr. L J 1719 and Muhammad Naeem v. The State 1989 P Cr. L J 1161.
(1) In the case mentioned at serial No,1 it was held that the Magistrate, who tried the case, was no doubt empowered under section 30, Cr.P.C. But he tried the case as a Magistrate 1st Class and not as a Magistrate vested with the powers under section 30, Cr.P.C. And as such the conviction recorded and sentence awarded by him was illegal. This case does not have much bearing on the question under consideration.
(2) In the case mentioned at serial No,2, it was held that after the amendment of Article 4 of the Prohibition (Enforcement of Hadd) Order 1979 a Magistrate empowered under section 30, Cr.P.C.
Could try an accused if the quantity of heroin or cocaine was more than 10 grams, or the quantity of raw opium or coca leaves was more than 1 kilogram and an offender could be awarded sentence of imprisonment for a period ranging between two years and imprisonment for life besides whipping not exceeding thirty stripes and fine.
(3) In the case mentioned at serial No,3 it was held that there was no jurisdictional defect if a case tribal by a Magistrate was sent up by him to the Court of Session and Additional Sessions Judge after the trial convicted and sentenced the offender under Article 4 of the Prohibition (Enforcement of Hadd) Order 1979 for having been found in possession of 106 grams of heroin, as the defect was curable under section 537, Cr.P.C. Having caused no prejudice to the convict.
7. Thus, the perusal of the recent case-law on the subject would show that the case in hand, in which the quantity of heroin is 500 grams, should have ordinarily been tried by a Magistrate Section 30 at Rawalpindi, being the Court of lowest grade amongst the Courts competent to try it though the Court of Session is also a Court of competent jurisdiction in the hierarchy of Courts on the criminal side to try such like cases. The general principle of law is that a case should be instituted in and tried by a Court of lowest grade or order and in that A context such cases should ordinarily be tried by a Magistrate invested with the power under section 30, Cr.P.C. And if a case, as in the instant one, is tried by a Court of Session it would be a defect curable under section 537, Cr.P.C. But these provisions of law should not be made use of frequently and in every case.
8. In this case most of the evidence is said to have been recorded by the learned Additional Sessions Judge before he proceeded on the training course. He may, on the resumption of duty, continue the trial and decide the case expeditiously but he should not take up the trial of any fresh case of like nature pending in his Court and should move the learned Sessions Judge for the transfer of all those cases to the Court of Magistrate Section 30 at Rawalpindi, having jurisdiction.
9. As regards the bail application, the petitioner has been in the lock up as an under-trial prisoner for more than a year after his arrest and for the delay in the disposal of the case he is not to blame.
He is, therefore, entitled to the release on bail on statutory ground and he is granted bail if he furnishes bail bond in the sum of Rs,20,000 with one surety in the like amount to the satisfaction of the Assistant Commissioner/Duty Magistrate, Rawalpindi.