Mohammad Zaman and Shah Wali are involved in a case registered vide FIR No.395 dated 29-8- 1990 under section 3/4, Prohibition (Enforcement of Hadd) Order, 1979 of Police Station, Pishtakhara on the allegation of recovery of 4 K.Gs. Heroin powder from their possession.
2. They moved an application before the learned Additional Sessions Judge, Peshawar for their release on bail on the ground that they had been arrested on 29-8-1990 and their trial having not been concluded they are entitled to be released on bail under third proviso of subsection (1) to section 497, Cr.P.C. The same was, however turned down vide his order dated 27-1-1992. Hence the instant petition.
3. I have heard Haji Mohammad Zahir Shah, Advocate learned counsel for the petitioners and Mr. Ismail Fahmi, Asstt. Advocate-General for the State at length and also perused the record of the case with considerable degree of care.
4. It is contended on behalf of the petitioners that while the fact of the petitioners being behind the bar for over one year, as also the non-conclusion of their trial with no fault of theirs, their bail petition has been dismissed vide the impugned order on the sole ground that 4 K.Gs. Of heroin powder was allegedly recovered from them and its such they are hardened criminals under fourth proviso to subsection (ii) of section 497, Cr.P.C. Thus assailing the impugned order he submitted that shore heinousness of the crime allegedly committed by the petitioners or the quantity of the narcotics recovered from them would not bring their case within the ambit of fourth proviso to section 497(1), Cr.P.C. He, therefore, asserted that in view of admitted position, the petitioners arc entitled to be released on bail.
5. The learned counsel for the State, however, contended that huge quantity of heroine powder recovered from the possession of the petitioners weighing 4 K.Gs. Disentitled them to the concession of bail even under third proviso and they cannot claim their release on bail as of right.
While supporting' the impugned order of the learned lower Courts, he, therefore, submitted that the case is ripe for trial and it would not be proper occasion to release the petitioners on bail at this stage.
6. I have given my serious consideration to the submissions made by the learned counsel for the parties in support of their respective pleas.
7. I am afraid the submissions made by the learned counsel for the State cannot be subscribed to and on the other hand I tend to agree with the learned counsel for the petitioners that while fulfilling the conditions laid down in third proviso of subsection (1) of section 497, Cr.P.C. Factual premises, which have not been controverted by the learned counsel for the State, the petitioners.
Seek their bail as their statutory entitlement. It may also be borne in mind that expression "the hardened, desperate or dangerous criminals" cannot be given a restricted construction for a short and simple reason that where the liberty of a citizen is involved, the Courts are .Hound to interpret such law, as contained in third proviso to section 497(1), Cr.P.C., more in favour of the petitioner than to his detriment. In the instant case, the learned counsel for the State also could not furnish any satisfactory explanation as to why the trial has not so far concluded. In this context of the matter, I am of the considered opinion that the petitioners have made out a case of their bail.
8.Resultantly, I allow this petition and hereby order that the petitioners shall be released on bail on their-furnishing bail bond in the sum of Rs.500,000 (rupees five lacs) with five local sureties of means in the like amount each to the satisfaction of the learned Sessions Judge, Peshawar.