' S.A. RABBANI, J.--- The applicant is facing trial in Special Case No,5 of 1998 before the Special Judge, Narcotic, Karachi West, initiated through F.I.R. No,4 of 1998 registered at Police Station A.N.F., Karachi under sections 6, 8, 9, 12, 14 and 15 of the Control of Narcotic Substances Act, 1997.
2. According to the F.I.R., the present applicant and one Sabir Ali Brohi were arrested in Crimes Nos.2 of 1998 and 3 of 1998 and, while in custody during investigation, the present applicant disclosed that his father-in-law, Haji Ibrahim Afridi, had sent 880 Kilograms Charas through Oil Tanker from Peshawar to Karachi which was laying in the godown of Sabir Ali Brohi. On this information, the F.1.0., Raees Ahmed, alongwith other staff of A.N.F. Took the accused in custody and on pointation of Sabir Ali Brohi, recovered 880 Kgs. Of Charas. Bail Application No,1293 of 1998 was previously filed for bail of the applicant but it was not pressed and the learned counsel for the applicant stated that since one witness had been examined, he would file fresh application before the trial Court. The trial Court rejected the bail plea and, therefore, the present application has been filed.
3. Mr. Zubedi contended that the Charas has been secured from the godwn of Sabir Ali Brohi and Sabir Ali Brohi himself pointed out the place and, therefore, the present applicant is not connected with the offence. He further contended that the confessional statement of the applicant has not been recorded in accordance with sections 164 and 364, Cr.P.C, and also that the statement is exculpatory. Mr. Zubedi also pointed out that one witness, Allah Rakha, has been examined by the trial Court, who was Mashir of recovery, and he stated that they had gone to the Garage of Sabir Ali Brohi with accused Sabir Ali Brohi in custody. He stated that the accused Sabir Ali Brohi himself led the police party to the Garage. In respect of the bar provided under section 51 of the Act, Mr. Zubedi relied on the case of Gulzaman v. State 1999 SCM R 1271.
4. On the other hand, Mr. Shoaib Ashraf, learned Special Public Prosecutor, contended that the Charas was secured at the pointation of the present applicant also and, therefore, he has been charged with offence punishable with death. He relied on unreported judgment of the Supreme Court in Criminal Petition No,53-K of 1998 (State v. Mubeen Khan).
5. Section 51 of the Act reads as under:-- "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 Narcotic 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. Clause (1) of this section provides a prohibition to grant of bail to an accused person charged with an offence under this Act, punishable with death. In the present case the applicant has been charged by the trial Court under this Act with an offence punishable with death.
7. In the case of Gulzaman, it has been observed that applicability of sections 496, 497 and 498 of the Cr.P.C. Is not totally barred in respect of matter under the Control of Narcotic Substances Act but the only prohibition is on the grant of bail to the person accused of offence punishable with death, while in other cases under the Act bail may be allowed in suitable cases. Thus, the prohibition in respect of bail to a person charged with an offence relating to Narcotic, punishable with death, has not been declared ineffective in this case. In case this prohibition is not recognized, section 51 of the Act would become redundant and the law of bail, as provided in Cr.P.C. Would have an unqualified applicability in Narcotic cases.
8. In the case of State v. Mubeen Khan also the Supreme Court has recognized the prohibition in respect of grant of bail in the Narcotic cases where the offence is punishable with death.
9. It has, however, been observed in the case of Gulzaman that under this law, there is no prohibition on the suspension of sentence of a convict during pendency of his appeal and if this is so, how can the intention of law be to deny the concession of bail to an undertrial prisoner merely on the basis of accusation in the F.I.R. In view of the law laid down by the Supreme Court in the abovementioned two cases, it can be inferred that section 51(1) of the Control of Narcotic Substances Act provides a bar in respect of grant of bail to an accused if the trial Court has framed a charge against him for an offence relating to Narcotic, which is punishable with death, or till the stage before a charge has been framed by the trial Court, if there is sufficient material available for framing such a charge, more than the allegations in the F.I.R. In the present case, the trial Court, has already framed a charge against the applicant about commission of an offence, relating to Narcotic, punishable with death. The prohibition shall, therefore, apply and the grounds otherwise available for consideration for the purpose of grant of bail, cannot be considered in view of this bar.
The applicant is, therefore, not entitled to bail. However, if the prosecution is unable to substantiate the charge, he may seek remedy of acquittal under the law at the proper stage.
(Sd.) S.A. RABBANI, J.
' I agree subject to appended note.
(Sd.) SABIHUDDIN AHMED, J.
SABIHUDDIN AHMED, J.--- 1 entirely agree with my learned brother that the provisions of section 498, Cr.P.C., cannot be so interpreted as to make those of section 51 of the Control of Narcotic Substances Act, entirely redundant and this application ought to be dismissed." However, I would prefer to reserve my opinion on the question whether section 561-A, Cr.P.C., can be invoked in an extreme hardship case in terms of the law declared by the Honourable Supreme Court in State v.
Qaim Ali Shah 1992 SCM R 2192 cited with approval in Gulzaman v. The State 1999 SCM R 1271.