ABDUL HAMEED DOGAR, J.--- Applicant Gul Hassan seeks bail in Crime No.30 of 1998 of Police Station Dokri, lodged under section 9 of Control of Narcotic Substances Act, 1997.
2. The allegations of prosecution against the applicant are that on 15-8-1998 complainant S.I.P.
Bashir Ahmed, S.H.O. of Police Station Dokri, received spy information that applicant Gul Hassan wanted in Crime No.27 of 1998 for an offence registered under the above provisions of law is selling narcotics in his Autaq in Village 13, Taluka Dokri. On such information he alongwith his subordinate staff proceeded in Government vehicle vide Roznamcha Entry No. 18 at 2-40 p.m. and while visiting various places when arrived at the pointed place at about 3 p.m. they saw the applicant sitting on a cot in his Autaq, who, on seeing the complainant party, attempted to run away but was apprehended. After lifting the pillow, Charas and heroin powder wrapped in a plastic bag was found lying on the cot, which was taken into possession under Mashinnama signed by S.I.P. Safdar Ali Abbasi and H.C. Sikandar Ali Tunio. From personal search of the applicant 3 currency notes of Rs.100, 4 notes of Rs.50 and 30 notes of Rs.10 each were secured. The Charas as well as heroin were weighed separately which became 1500 grams and 500 grams respectively and were also sealed at the spot.
3. Mr. Muhammad Ayaz Soomro contended that S.I.P. Bashir Ahmed has not only acted as complainant alone but has investigated the case and has sent up the applicant to face trial, as such the entire investigation is illegal. According to him police has failed to arrange any independent and respectable witness from the locality though they received spy information well in time, hence the provisions of section 103, Cr.P.C. have been violated. According to the case of prosecution 1500 grams of Charas and 500 grams of heroin powder were secured, whereas according to chemical examiner's report Charas was 1200 grams and heroin powder was 400 grams, as such the allegation against the applicant requires further inquiry. He further argued that the applicant is shown to have been arrested in Crime No.27 of 1998 of same police station on 16-7- 1998, whereas he has been shown arrested in the present case on 15-7-1998 at 3 p.m., which also requires further probe as to which one is correct, the benefit of which goes in favour of the applicant. He lastly submitted that the embargo imposed by section 51(1) of the Control of Narcotic Substances Act, 1997 (hereinafter to be referred to as the 'Act') would not apply to the case. of the applicant as the alleged offence is not exclusively punishable with death but is punishable with alternate punishment, as such it would be the ultimate discretion of the Court to award any of the sentences mentioned. In support he relied upon the case law reported in 1984 PCr.U 2300, 1973 PCr.U 205, 1996 PCr.U 347, 1987 PCr.L1 1355, PLD 1995 SC 34, 1994 PCr.U 1689; Criminal Bail Applications Nos. 118 of 1998, 35 of 1997 and 64 of 1997.
4. Mr. Amir Ahmed Kabic, the learned counsel appearing on behalf of the State, frankly conceded with the arguments advanced by the learned counsel for the applicant and raised no objection to the grant of bail to the applicant.
5. Before dilating upon merits of the case, we prefer to discuss first the effect of ban imposed by section 35(1) of the Act on grant of bail with regard to the case of the applicant. For proper appraisal reference is made to sections 9 and 51 of the Act:-- "9.Punishment for contravention of sections 6. 7 and 8.--- Whoever contravenes the provisions of sections 6, 7 or 8 shall be punishable with-- (a)imprisonment which may extend to two years, or with fine, or with both; if the quantity of the narcotic drug, psychotropic substance or controlled substance is one hundred grams or less; (b)imprisonment which may extend to seven years and shall also be liable to fine, if the quantity of the narcotic drug, psychotropic substance or. controlled substance exceeds one hundred grams but does not exceed one kilogram; (c)death or imprisonment for life or imprisonment for a term which may extend to fourteen years and shall also be liable to fine which may be upto one million rupees, if the quantity of narcotic drug, psychotropic substance or controlled substance exceeds the limits specified in clause (b); Provided that if the quantity exceeds ten kilograms the punishment shall not be less than imprisonment for life. "
"51.No bail to be zranted in respect of certain offences.--. (1) Notwithstanding anything contained in sections 496 and 497 of the Criminal Procedure Code, 1898 (V of 1898), bail shall not be granted to an accused person charged with an offence under this Act or under any other law relating to narcotics where the offence is punishable with death.
(2)In the case of other offences punishable under this Act, bail shall not be normally granted unless the Court is of the opinion that it is a fit case for.the grant of bail and against the security of a substantial amount."
6. The case of the applicant would fall under subsection (c) of section, 9 of the Act as the quantity of narcotic substance exceeds one kilogram and I does not exceed 10 Kilograms. Subsection (c) on the face of it provides three alternative punishments, viz., death or imprisonment for life or imprisonment for a term upto 14 years and fine upto Rs.1,000,000. Section 51(1), of the Act outrightly imposes ban on the grant of bail to an accused person under sections 496 and 497, Cr.P.C., where he is charged with an offence punishable with death under this Act or under any other law relating to narcotics. It explicitly excludes application of sections 496 and 497, Cr.P.C., but did not refer to the exclusion of sections 498 and 498-A, Cr.P.C. By section 47 of the Act the provisions of Code of Criminal Procedure, 1890 have been made applicable with the cases under this Act except as otherwise provided therein including provisions relating to confirmation of death sentence.
7. Irrespective of this, the application under section 561-A, Cr.P.C. has also not been excluded, as such this Court in its inherent jurisdiction can exercise powers under section 561-A, Cr.P.C. and grant appropriate relief. The fact of omission to mention particular provisions of law means that the same are available. Above all this Court being a Constitutional Court also has jurisdiction on general as well as special laws.
8. It is not only in this enactment but similar type of embargo to exercise the jurisdiction for grant of bail had been imposed in various laws from time to time. Reference to some of them is as follows:
9. In section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, the Courts were prohibited to exercise powers under sections 426, 491 and 498, Cr.P.C. Similar provisions with regard to the application of section 426 or 491 or 498, Cr.P.C. had been provided in the offences in respect of Banks Special Courts Ordinance, 1984 and according to section 10 of the Ordinance, no Court shall have authority to exercise jurisdiction in respect of the above. Under section 11 of the Special Courts for Speedy Trials Act, 1992, the powers of this Court were curtailed with regard to the application of provisions of sections 439, 491, 496 497, 498, 498-A and 561, Cr.P.C. but the Special Court was authorised to exercise jurisdiction to grant bail. By subsection (3) of section 30 of the Anti---Terrorism Act, 1997 this Court had been restricted to exercise jurisdiction in respect of sections 439, 491, 496, 498, 498-A and 561-A, Cr.P.C., whereas Special Court was allowed the jurisdiction to grant bail. So, many sections including section 30 of the Anti-Terrorism Act, 1997 came up under discussion before the Honourable Supreme Court in the case of Mehram Ali v.
Federation of Pakistan, reported in PLD 1998 SC 1445, wherein such provisions were declared to be violative of the Constitutional provisions having no legal effect. Irrespective of this, the other above referred provisions of law came up under scrutiny of this Court and other High Courts from time to time and it was all along observed that the High Courts have the jurisdiction.
10. The Honourable Supreme Court in the case of The State v. Qaim Ali Shah, reported in 1992 SCM R 2192, has held that the provisions of Criminal Procedure Code, 1898 have not been expressly excluded by the Suppression of Terrorist Activities Act and those which are not inconsistent with the provisions of the Act shall remain available and, therefore, not only section 497, Cr.P.C., but even 561-A, Cr.P.C. can be pressed into service in an appropriate case. With regard to jurisdiction of the superior Courts, it was observed that the same could not be abolished or ousted unless the same was done by an express, clear and unambiguous words or clear intendment.
11. Irrespective of the above, while interpreting the statutes it was held by the Honourable Court that if two views of a provision of a penal statute are possible, one, which favours the accused person, be preferred over the other. In the referred case of Qaim Ali Shah (ibid), reference has been made io sufficient case law of the Honourable Supreme Court as well as different High Courts including this Court. In the above case it was also observed that our Constitution guarantees Fundamental Rights and Article 2A thereof enshrines Islamic mandates so the Courts while construing the provisions of statutes should make efforts that the interpretation of relevant qtatute should be in consonance with above Article of the Constitution.
12. We are fortified by an unreported order to Criminal Petition N0.19 of 1998 of the Honourable Supreme Court whereby bail was granted to the petitioner on the ground of further inquiry though it was vehemently contended by the learned Dy.A.-G. that the petitioner was not entitled to the grant of bail in view of bar contained in section 51 of the Act.
13. Applicant Khuda Bux, against whom there was allegation of recovery of 1000 gram of contraband Charas and 100 grams of contraband opium, was allowed bail by this Court vide unreported order in Criminal Bail Application No. 119 of 1998, referred above: Similarly a Division Bench of this Court in the case of Mst. Razia and another, vide Criminal Bail Application No.35 of 1997 had allowed bail to them from whose possession 850 grams of Charas and 750 grams of heroin were said to have been recovered.
14. This Court in the case of Muhammad Qasim, vide an unreported order passed in Criminal Bail Application No.64 .of 1997, allowed bail to him against whom there was recovery of 500 grams of heroin powder on the ground including one that the complainant as well as Investigating Officer was the same S.H.O. of Police Station Ferozabad.
15. There is no exception to the rule that in the cases punishable with death or imprisonment for life or imprisonment for 10 years, bail should not be granted to an accused person if there appears reasonable ground for believing that he has been guilty of an offence punishable with the above imprisonment, but at the same time subsection (2) of section 497, Cr.P.C. provides that bail should not be refused to the accused person where the allegations against him require further inquiry into his guilt. Just to arrive at the above conclusion, tentative assessment of the material on record of that particular case is to be done.
16. The Honourable Supreme Court in the case of Tariq Bashir and 5 others v. The State reported in PLD 1995 SC 34 had given guideline for the Courts in disposal of bail cases. With regard to the offences punishable with death or imprisonment for life or imprisonment for 10 years, it has been held that the provisions of section 497(1), Cr.P.C. are not punitive in nature and it has been observed that in such cases where the prosecution satisfies the Court that there are reasonable grounds to believe that the accused has committed the crime falling in the above category, the Court must refuse bail but where the accused satisfies the Court that there are no reasonable grounds to believe that he is guilty of such an offence,-then the Court must release him on bail. For arriving at the conclusion only tentative assessment of the material collected by the police for and against the accused is to be made.
17. On the alternative punishments this Court in the case of Muhammad Akhtar v. The State reported in NLR 1983 Crl. 723, had allowed bail to the applicant by holding that when two alternate punishments, one for imprisonment and another of fine are provided for any offence, the trial Court would have unfettered discretion to resort to any punishment and in such case it would be difficult to hold such offence to be exclusively punishable with either of the punishments.
18. In Criminal Petition No.391-I of 1998 (Gul Zaman v. The State), question of jurisdiction under sections 497 and 498, Cr.P.C. with regard to the power of the Court to grant bail in the light of the embargo contained in section 51 of the Act, came under thorough discussion before the Honourable Supreme Court and it was unanimously held by their Lordships that despite the provision contained in section 51 of the Act, the Courts of Sessions and High Courts have the power to grant bail.
19. On merits the contention that there is vast distinction in the alleged recovery of heroin as per case of prosecution and the one shown by the Chemical Examiner as per Chemical Examiner's Report has sufficient force. The factor that according to the case of prosecution 1500 grams of Charas and 500 grams of heroin were recovered from the applicant, whereas as per', Chemical Examiner's Report the said quantity was consisting of 1200 grams', of Charas and 400 grates of heroin requires further probe as to which one out of the two is correct. Another important contention with regard to the arrest of the applicant in this case also leaves room for serious consideration and j requires recording of evidence as to whether the applicant was arrested in the instant case on 15-7-1998 or in Crime No.27 of 1998 on 16-7-1998.
20. For the foregoing discussion, we are of the considered opinion that embargo of section 51(1) would not apply to this case and the allegation against the applicant requires further inquiry as contemplated under subsection (2) of section 497, Cr.P.C.
21. Accordingly the bail is granted and the applicant be released on furnishing surety in the sum of Rs.1,00,000 with P.R. Bond in the like amount to the satisfaction of the learned trial Court.
ANWAR ZAHEER JAMALI, J.--- I have perused the order proposed to be delivered by my learned brother Abdul Hameed Dogar, J., for whom I have great respect. I find myself unable to, agree with the view taken by my leaned brother in his order hence I venture to write a separate dissenting .order.
2. The applicant is accused in Crime No.30 of 1998 Police Station Dokri for an offence under section 9(c) of Control of Narcotic Substances Act, 1997 (Act XXV of 1997) (hereinafter referred as the Act).
The relevant facts of the prosecution case have already been recorded in para. 2 of the order of my learned brother hence need not be reproduced here.
3. In the instant case the learned counsel for the applicant, Mr. Ayaz Soomro has raised following contentions for seeking bail of the applicant:-- (i)Though the offence for which the applicant has been charged falls under section 9(c) of the Act but the bar provided in section 51(1) of the Act will not apply in the present case as the offence is not exclusively punishable with death but alternate punishment for life imprisonment or for a term which may extend to 14 years and fine upto one million rupees has also been provided under the same section and, therefore, for the purpose of bail lesser punishment prescribed under section 9(c) shall be taken into consideration.
(ii)According to the F.I.R. the quantity of Narcotic Substance recovered from the applicant is 1500 grams of Charas and 500 grams of heroin while according to the Chemical Examiner's Report the quantity shown is 1200 grams of Charas and 400 grams of heroin. This difference in the quantity of narcotic substance recovered from the applicant makes it a case of further enquiry.
(iii)According to the F.I.R. in Crime No.30 of 1998 the applicant was arrested on 15-7-1998 while according to the police diary of another Crime No.27 of 1998 of the same police station his arrest in that case is shown on 15-1-1998. This contradiction in the date of arrest of the applicant also needs further enquiry.
(iv)The Mashir of arrest and recovery are all police officials and, thus, there is clear violation of section 103, Cr.P.C.
(v)Same police official S.I.P. Bashir Ahmed S.H.O., Police Station Dokri has acted as complainant as well Investigating Officer. of this crime hence whole investigation is illegal.
4. The learned counsel for the applicant in support of his contentions has relied on some reported and unreported decisions, as already noted in the order of my learned brother, hence such list is not reproduced here.
5. In the present case the learned State Counsel appearing on behalf of the State has raised no objection to the grant of this bail application but I am unable to subscribe to the above concession made by the learned State counsel. Moreso as he has not given any justification for conceding to this bail application. This conduct of the learned State Counsel is not understandable.
6. Before dilating upon the merits of this case and examining the first contention raised by the learned counsel for the applicant it will be proper to reproduce here section 9 and section 51 of the Act, as the same will be relevant for this purpose:-- "9.Punishment for contravention of sections 6. 7 and 8.--- Whoever contravenes the provisions of section 6, 7, or 8 shall be punishable with--- (a)imprisonment which may extend to two years, or with fine, or with both, if the quantity of the narcotic drug, psychotropic substance or controlled substance is one hundred grams or less; (b)imprisonment which may extend to seven years and shall also be liable to fine, if the quantity of the narcotic drug, phychotropic substance or controlled substances exceeds one hundred grams but does not exceed one kilogram; (c)death or imprisonment for life or imprisonment for alter which may extend to fourteen years and shall also be liable to fine which may be upto one million rupees, if the quantity of narcotic drug, paychotropic substance or controlled substance exceeds the limits specified in clause (b): Provided that if the quantity exceeds ten kilograms the punishment shall not be less than imprisonment for life.
51.No bail to be granted in respect of certain offences.--- (1) Notwithstanding anything contained in sections 496 and 497 of the Criminal Procedure Code. 1898 (V of 1898), bail shall not be granted to an accused person charged with an offence under this Act or under any other law relating to narcotics where the offence is punishable with death (2)In the case of other offences punishable under this Act, bail shall not be normally granted unless the Court is of the opinion that it is a fit case for the grant of bail and against the security of a substantial amount.
(underlinging is for emphasis)
7.Reverting to the facts of the present case, as per prosecution story, the applicant was arrested from his Otaq and narcotic substance recovered from him was weighing 1500 grams of Charas and 500 grams of heroin, thus, it is clear that the offence for which the applicant has been charged would fall under section 9(c) of the Act. From the plain reading of this section it is evident that inter alia the punishment prescribed for such an offence is death. Proviso to this section also provides that if the quantity exceeds 10 kilograms then the punishment shall not be less than imprisonment for life.
8. After examining section 9 of the Act, when we revert the language of section 51 of the Act, to see its applicability, it is clearly deducible that where the offence for which an accused is charged is punishable with death, under this Act or any other law relating to narcotics, not only the applicability of sections 496 and 497 has been specifically excluded but further an embargo for release of such accused on bail has been imposed, and for other offences punishable under the Act bail is not to be granted normally.
9. On putting these two sections in juxtaposition, it is palpably clear that the complete bar as to the grant of bail imposed under section 51(1) will only apply to the cases falling under the category (c) of section 9 of the Act. If the interpretation of these two sections advanced by the learned counsel for the applicant is taken as correct then the net result would be that section 51(1) of the Act would become redundant and it will not be applicable to any case covered by either categories (a), (b) or (c) of section 9, obviously this could not be the spirit of the law-makers, nor such an interpretation of section 51(1) will be justified on the sound principles of interpretation of statutes.
10. In the case of Muhammad Ismail v. Abdul Habib PLD 1993 Kar. 181 an Honourable Judge of this Court (Late Qasir Ahmed Hameedi, J.) while examining the question of interpretation of statute and satisfactory mode of construction of statute has observed that the most satisfactory mode of construction of a statute is to examine the statute itself and if possible, to ascertain the. meaning from the statute alone. If the meaning of an expression used in a statute is plain, the intention of the legislature cannot be speculated upon and a Judge is not allowed to modify statutes to suit his own views of justice or expediency.
11. In the case of Allied Bank of Pakistan Ltd. v. Khalid Farooq 1991 SCM R 599 the Honourable Supreme Court while examining the point of interpretation of statute have quoted following passage from the book Cranes on Statute Law, 5th Ed., page 243, statutes:-- "If the requirements of a statute which prescribes the manner in which something is to be done are expressed in negative language, that is to say, if the statute enacts that it shall be done in such a manner and in no other manner, it has been laid down that those requirements are in all cases absolute, and that neglect to attend to them will invalidate the whole proceedings."
In another case reported as Messrs State Cement Corporation of Pakistan v, Collector of Customs Karachi and others 1998 SCM R 2207 the Honourable Supreme Court while examining the question of interpretation of statute ha; quoted following passage from the book Crawford on the construction o~ statutes:-- "If the language of the 'statutory provision is unambiguous and the statute's meaning is clear, the statute must be accorded the expresses meaning without deviation. The golden rule of .interpretation o statutes is to adhere to the ordinary meaning of the words uses unless that is at variance with the intention of the Legislature which intention is to be collected from the statute itself.
Where the statute's meaning is clear and explicit, words cannot b~ interpolated. In the first place, in such a case, they are not needed. If they should be interpolated, the statute would more than likely fail to express the legislative intent, as the thought intended to be conveyed might be altered by the addition of new words. They should not be interpolated even though the remedy of the statute would thereby be advanced or a more desirable or just result would concur. Even where the meaning of the statute is clear and sensible either with or without the omitted word, interpolation is improper, since the primary source of the legislative intent is in the language of the statute. "
12. Keeping in the mind the above guiding principles of interpretation of statute, from the plain language of section 51(1) of the Act it is evident that the same is couched in a way that its applicability to all cases falling under section (c) is unavoidable and for the cases covered by section 9(c) of the Act the applicability of sections 496 and 497, Cr.P.C. is also excluded. Thus, the first contention of the learned counsel that availability of alternate punishment than death, prescribed under section 9(c) will exclude such case from the applicability of bar contained under section 51(1) of the Act is without force.
13. However, from the discussion made above, I do not mean to observe that due to the bar contained in some special statutes jurisdiction of this Court to grant bail even in appropriate cases is completely ousted. The High Court is not denuded of its powers to grant bail in an appropriate case if in the peculiar facts and circumstances of that case ends of justice so demand. Such a view is deducible from the guideline given by the Honourable Supreme Court of Pakistan in the following cases: (a)Zahoor Ilahi v. The State PLD 1977 SC 273, (b)Allied Bank of Pakistan v. Khalid Farooq 1991 SCM R 599, (c)The State v. Syed Qaim Ali Shah 1992 SCM R 2192 (d)Choudhary Shujjaat Hussain v. The State 1995 SCM R 1249, (e)Tariq Bashir and 5 others v. The State PLD 1995 SC 34 and (f)Gul Zaman v. The State Criminal Petition No.391 of 1998, decided by the Honourable Supreme Court on 18-12-1998.
It may be mentioned here that the last case in the list was a case relating to narcotic substance and the Honourable Supreme Court was pleased to grant ball to the accused considering the facts that at the time when the offence was committed by the accused Act XXV of 1997 was not in force, consequently the bar as contained under section 51 of the Act was not available. The name of the accused was disclosed by the other accused, on arrest nothing was recovered from him and that he was in custody for more than one and a half years.
14. Coming to the second contention, about the difference in quantity of narcotic substance as shown in the F.I.R. and in the chemical report, it may be observed that now at this stage, for the purpose of bail, even if lesser quantity as shown in the report of chemical examiner is taken into consideration then also the case of the applicant is covered by same section 9 of the Act, and thus, such discrepancy in weight will not place his case on any better footing. As a matter of fact this aspect of the case involves deeper appreciation of evidence which cannot be undertaken at this stage without allowing an opportunity to the prosecution to explain their position at the time of trial of the case. Reference in this regard may be made to the cases of Iqbalur Rehman v. The State PLD 1974 SC 83 and Abdul Hayee and 2 others v. The State 1996 SCM R 555. For these reasons the second contention of the learned counsel is also without force
15. Reverting to the third contention which relates to some alleged discrepancy in the date of arrest of the accused as shown in two different crimes, it is pertinent to note that as per F.I.R of the present case the date of arrest of the applicant is shown as 15-7-1998, all. the P.Ws. in their 161, Cr.P.C. statement recorded on 15-7-1998 have also stated the date of arrest of the applicant as 15-7-1998 and this fact is also confirmed from the Mashirnama of arrest of the applicant and Mashirnama of recovery of even dates available in the police papers. Thus, in fact there is no discrepancy or mistake in the date of arrest of the applicant in Crime No.30 of 1998. If the applicant is involved in another Crime No.27 of 1998 and in that crime the arrest of the applicant has been incorporated in the diary dated 16-7-1998, it does not mean that his arrest was made on 16-7-1998. The learned counsel for the applicant has filed a .true translation of such dally diary of Crime No.27 of 1998, dated 16-7-1998 which is reproduced as under:-- P. S. DokriCase DiaryDistrict Larkana Crime No.27 of 1998 under section 9, C.N.S.O. Diary No.5 Date and Sr.No. place.Case matter.
16-7-1998 From Dokri to Otaq of accused, from Otaq of accused to Judicial Magistrate Sahib Dokri and then return for Dokri.Diary by S.I.P. Safder Ali Abbassi, Police Station Dokri.
Complainant on ehalf of State, S.I.P., Safder Ali Abbassi, Police Station Dokri.
Accused. (1) Ghulam Hussain alias Mitero resident of Muhammad Bux Dero, (2)Gul Hassan son of Mithal caste Dero, resident of Village Dera Taluka Dokri.
(1)Respected Sir, It is submitted that investigation matter of this case has already been submitted with later diary which will reveal the facts.
(2) Afterwards, whereas, we were present at the police station when we received spy information that our wanted accused Gul Hassan Dero was selling bandit drugs in his Otaq, to which we, S.H.O. Sahib alongwith subordinate staff, left for the spy pointed place, and from the pointed place i.e. Otaq of accused we arrested accused Gul Hassan Dero alongwith Charas and heroin powder and brought him at the .police station where S.H.O. Sahib being complainant on behalf of the State registered case on the basis of recovered Charas and heroin vide Crime No.30 of 1998 for the offence under section 9 C.B.S.O. F.I.R., photostat copy of Mashirnama are submitted herewith.
Hulio form, and statement of accused are also submitted herewith.
Today we produced accused before Court of Honourable Judicial Magistrate, Dokri for obtaining 14 days police custody remand, and the Honourable Court granted 7 days J.C. remand for the accused.
(4)Afterwards we left accused in custody at judicial lock-up Dokri and returned to the police station.
Respected Sir, It is requested that the investigation of the case has been completed. The case has been proved against the accused for submitting the challan, for which the case papers have been delivered to worthy S.H.O. Sahib for obtaining opinion from the higher authorities, and further investigation report would be revealed from the next case diary.
Diary submitted, (Sd.) S.I.P. Dokri Police Station
16. From the perusal of this diary it is clear that nowhere the date of arrest of the applicant is shown as 16-7-1998 but with reference to his arrest in Crime No.30 of 1998, fact about the arrest of the applicant has been incorporated in the diary, dated 16-7-1998. The same diary also indicates that when the remand of the applicant was obtained on the same date such entry was started with the word "today". In view of this position the third contention is also devoid of force.
17. Before considering the fourth contention, it will be useful to reproduce here section 25 of the Act as it seems relevant for this purpose:-- Mode of making search and arrest.--- The provisions of the Code of Criminal Procedure, 1898, except those of section 103, shall, mutatis mutandis, apply to all searches and arrests in so far as they are not inconsistent with the provisions of sections 20, 21, 22 and 23 to all warrants issued and arrests and searches made under these sections. "
From a bare reading of this section it is crystal clear that the applicability of section 103, Cr.P.C. has been specifically excluded in the cases covered under the Act and, therefore, this contention of the learned counsel that in the present case the Mashir of arrest and recovery are all police official and, therefore, this is a case of further enquiry has also no force.
18. Reverting to the last contention of the learned counsel that the same police official S.I.P., Bashir- Ahmed S.H.O., Police Station Dokri has acted as complainant as well as Investigating Officer of the crime hence the whole investigation of this crime is illegal. It will be pertinent to mention that Chapter III of the Act deals with the procedure of search and investigation for the crimes under the Act. When the statute evolves its own procedure for the purpose of search and investigation, then impliedly it excludes the applicability of general law of search and investigation to that extent. In view of this position the last contention of the learned counsel is also found without any substance.
19. The other case law referred by the learned counsel for the applicant has no relevancy to the facts and circumstances of this case, even otherwise in criminal cases specially in bail matters no universal rule of application can be pressed into service. In the case of Nazar Muhammad v. The State PLD 1978 SC 236 the Honourable Supreme Court while examining the question of applicability of case law has observed as under:-- ---..... We may observe that every case of criminal nature proceeds on its own facts and circumstances and a rule of universal application cannot be deduced from the-decision of any particular case.
In the case of Safdar Abbas v. The State PLD 1987 SC 476 the Honourable Supreme Court has observed as under:-- " It may be noted that principles laid down in criminal cases are always founded on the facts and circumstances of each case and cannot be loosely applied in an omnibus manner."
20. Besides, the influx of narcotic substance in our country in large quantity has taken the shape of a illicit trade which is a menace for the society. A desire in the mind of common men to plunder wealth by easy means has further aggravated this situation. Promulgation of "Control of Narcotic Substances Act, 1997" providing heavy punishment for the offences covered under the Act itself speak volumes about the graveness of the situation in this regard. In such circumstances, the Court should not be' oblivious of all these facts and, therefore, any request for grant of bail in such cases shall be examined more carefully and no lenient view should be taken in the matter.
21. For the foregoing reasons, I am of the view that at this stage there are reasonable grounds to believe that the applicant is guilty of the offence for which he is charged and there are no sufficient grounds to release him on bail. Accordingly this bail application is dismissed.
22. It may be mentioned that the observations made in this order are of tentative nature and the trial Court during proceedings of the case shall not be influenced by the same.
DR. GHOUS MUHAMMAD, J.--- This bail application has been placed before me, on account of difference of opinion between by learned brothers, Abdul Hameed Dogar, and Anwar Zaheer Jamah, JJ. Mr. Justice Abdul Hameed Dogar granted bail to the applicant/accused, while bail was declined by Mr. Justice Anwar Zaheer Jamali vide order, dated 3-5-1999.
Since facts of the case have been given by my learned brothers in their respective orders, therefore, there is no need to repeat the same. The only crucial question is whether in view of the facts and circumstances disclosed in the F.I.R., the applicant is entitled to bail keeping in view the provisions contained in section 9 and section 51 of the Control of Narcotic Substances Act, 1997.
I heard Mr. Muhammad Ayaz Soomro, learned counsel for the applicant and Mr. Dilawar Hussain, Advocate appearing for the State. I also perused the orders in question and the case-law.
Learned counsel for the applicant submitted that all, the P.Ws. are interested and the alleged recovery was foisted upon the applicant. Furthermore, the report of the chemical examiner belies the quantity alleged to have been recovered from the possession of the applicant. The Mashirs of recovery are also set up witnesses and that the offence is not punishable with death, imprisonment for life or even ten years, as the offence falls within the ambit of clause (b) of section 9 of the Act, the quantity of alleged heroin powder being only 500 grams, and, the punishment provided under the Act is 7 years maximum.
My learned brother, Anwar Zaheer Jamali, J. has opined that in view of the quantity of the heroin powder, the offence would fall under section 9(c) of the Act which entails punishment to the extent of death penalty. In para. 6 of his order, my learned brother also reproduced sections 9 and 51 of the Act. A plain reading of clause (b) of section 9 of the Act, shows that if the drug, phychotropic substance or controlled substance N exceeds one hundred grams but not one kilogram (1000 grams), the offence would entail punishment up to 7 years only. It would be advantageous to reproduce section 9(b) of the Act which reads as follows:--- "9(b) Imprisonment which may extend to seven years and shall also be liable to fine, it the quantity of the narcotic drug, phychotropic substance or controlled substance exceed one hundred grams but not exceed one kilogram."
In an identical matter, following the law laid down by the Honourable Supreme Court in Gul Zaman v. The State, 1999 SCM R 1271, 1 had grated bail. Therefore, having considered each aspect of the matter I am inclined to agree with the reasons and conclusion arrived at by my learned brother, Abdul Hameed Dogar, J. This bail application stands disposed of accordingly.