' Ghani-ur-Rehman, petitioner herein, is implicated in case F.I.R. No,41, dated 30-11-1994 Police Station Anti-Narcotics Task Force, Kohat under Article 3/4 of the Prohibition (Enforcement of Hadd)
Order, 1979 and section 8/14 of the Dangerous Drugs Act, 1930 wherein Shahid Shah, F.I.O. Kotal Check Post, Kohat has alleged that an informer tipped him that today at any time heavy quantity of narcotics will be transported to Karachi and thereafter smuggled abroad and the truck ostensibly would be loaded with wood. The Kotal Check Post was watched by a strong posse.
Meanwhile a truck bearing registration No,GLT 2960 appeared from Darra Adam Khel which was stopped. Three persons were seated in the truck which was searched and Charas was pointed out beneath the logs of white poplar tree. Two persons who were standing nearby were arrested and the 3rd person who was at some distance decamped in the hillock towards Darra Adam Khel who was chased but because of darkness succeeded in the escape. The two arrested persons disclosed their names Ghani-ur-Rehman, Driver (petitioner) and Hastam Khan son of Azam Khan, Conductor. The escaped companion name was disclosed as Afzal Khan. The truck was brought to the police station and below the logs of white poplar tree, 150 pieces of white plastic bags full of Charas were recovered weighing 6,000 Kgs.
2. Learned counsel for the petitioner vehemently argued that the petitioner is driver of the truck and his case is not at par with the owner of the alleged recovered Charas from the truck. Reliance is placed on judgment Noorul and others v. The State 1976 SCM R 190. Learned counsel further contended that for purposes of bail the ordinary rule of consideration of punishment is the law which provides lesser punishment. The petitioner is charged for transport of the Charas under Article 3 of the Prohibition (Enforcement of Hadd) Order, 1979 which is punishable with imprisonment extending to 5 years. Reliance is placed on judgment Bashir Ahmad and another v.
The State 1987 PCr.LJ 750 and judgment Tariq Bashir and 5 others v. The State PLD 1995 SC 34.
Learned counsel for the State submitted that the petitioner was not only transporting the intoxicant (Charas) but was also in possession of the same and, therefore, not entitled to the grant of bail.
Reliance was placed on judgment Muhammad Saeed v. The State 1993 PCr.LJ 509, Bahar Gul v. The State PLD 1993 Pesh.
125.
3. The circumstances of the case Noorul and others 1976 SCM R 190 were that crew members of a launch in which 120 cases of foreign whisky was smuggled from Dubai, were arrested and charged under section 156(8) of Customs Act, 1969. The owner of the launch had absconded. The august Supreme Court of Pakistan while considering the bail application of the crew members observed and held as under:-- "We have heard Mr. Muhammad Suleman, Additional Advocate-General, Sindh, who maintained that the petitioners were not entitled to bail as the offence with which they are charged is punishable with rigorous imprisonment for 10 years. At the same time he pointed out that the real beneficiary of the smuggled goods viz., the owner of the launch has disappeared while the petitioners were only his paid servants. This indicated that the offences committed by the petitioners was not at par with the offence committed by Noor Muhammad who has yet to be brought to trial."
' In the case of Bashir Ahmad and another 1987 PCr.LJ 750 the petitioners were charged for possession and transport of Charas weighing about 3 Maunds. The petitioners were released on bail on the rule that the offence,is not punishable with 10 years or more. In the case of Tariq Bashir and 5 others PLD 1995 SC 34 bail was granted as of right on the same rule except for the circumstances mentioned in the judgment.
4. The petitioner is charged under the Prohibition Order and also under the Dangerous Drugs Act which are yet to be established for the purposes of punishment. An accused person, if charged under two different statutes, which provide different punishment then the ordinary rule is that the benefit of the statute carrying lesser punishment is considered for the purposes of grant of bail.
Admittedly, the petitioner is driver of the truck and had made no attempt to escape. The version of the occurrence, prima facie, points to the mens rea of the person who is stated to have decamped in the hillocks towards Darra Adam Khel and succeeded in the escape because of darkness. The material on the record of the case also suggests that the petitioner is not the beneficiary of the recovered Charas from the truck. The offence, if any, committed by the petitioner is not at par with the offence committed by the owner of the Charas. The general provisions of the Prohibition (Enforcement of Hadd) Order, 1979 do make distinction between the degree of offences and corresponding punishments. The Prohibition Order (P.O. 4 of 1979) in its application to a case carries the heavy burden of proof of mens rea in bringing home the charge against an accused person.
' From the material on the record of the case and the reasons stated above, this application is accepted. The petitioner shall be released on bail by furnishing bail bonds in the sum of Rs,one lac with two sureties each in the like amount to the satisfaction of Illaqa/Duty Magistrate.