' AJMAL MIAN, C.J.---This is a petition for leave to appeal against the order, dated 10-8-1998 passed by a Division Bench of the High Court of Sindh at Karachi in Criminal Bail Application No,330 of 1998 filed by the respondent for grant of bail in respect of offences under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter referred to as the Order) and sections 6, 7, 8, 9, 10. 11 and 12 of the Control of Narcotic Substances Ordinance, 1996, which has now been substituted by the Narcotic Substances Act, 1997 (hereinafter referred to as the Act), pursuant to F.I.R. No,3 of 1997 registered at Police Station-II ANF, Karachi, allowing the same on the ground of statutory delay.
' The State through Deputy Director, Anti-Narcotics Force, Karachi, has filed the present petition for leave to appeal. This Court had issued notice to the respondent in response whereof he put in appearance on 28-1-1999. He was directed to execute personal bond to the satisfaction of the Assistant Registrar, Supreme Court of Pakistan, in the sum of Rs,4,00,000 (Rupees four lacs), which he arranged.
2. The brief facts are that on 4-2-1997 F.I.O. Muhammad Khan Dayo received spy information that two foreigners, namely, Pascal and Harmon had provided sufficient quantity of iron nut bolts having heroin power inside to High Cargo Services situated at Block-6, P.E.C.H.S., Karachi, for transporting abroad and M/s. Tanzim Ahmed Khan and Israr Hussain impersonating them as police officials had taken away those nut bolts and handed over the same to the respondent at Ever Green Freight Forwarding Cargo Services, Block-6, P.E.C.H.S. Upon receipt of the above information the said Muhammad Khan and his subordinates under the supervision of Muhammad Baig, Incharge ANF-PS-II, raided the office of the respondent at about 3-35 p.m. And found the respondent, co-accused Tanzim Ahmed Khan and Israr Hussain and recovered 10 sacks like gunny bags from their possession, each containing 170 nut bolts which were broken and from which heroin power weighing to 10 Kgs. Was collected. Out of the 10 Kgs. Heroin powder 20 grams were separated and sealed for chemical examination and rest of the heroin powder and the nut bolts were separately sealed and the respondent and the co-accused were taken into custody.
3. It seems that the respondent was declined bail, inter alia, by a Division Bench by order, dated 13- 2-1998 (Criminal Bail No,1872 of 1997) for the following reasons:-- "Here in this case applicant has neither alleged any enmity with 'the complainant nor has shown any reason of his being prejudiced. The case of Ali Muhammad alias Ali Ghujoo v. The State NLR 1994 SD 491 and that of Sajjad Hussain v. The Sate, 1996 PCr.LJ 1437 are also of no help to the case of the applicant. Irrespective of the above discussion, the alleged offence being punishable with imprisonment for life also and is covered under prohibitory clause of section 497, Cr.P.C. In our view there appears to be reasonable grounds to believe that he is guilty of the offence alleged and there are no sufficient grounds for further enquiry into his guilt. Accordingly, bail application is dismissed."
4. It appears that after the dismissal of the above bail application on or about 13-2-1998, the respondent filed the above fresh bail application in the High Court on the ground of statutory delay, which was allowed through the impugned order.
5. Thereupon, the above petition for leave to appeal was filed as stated hereinabove.
6. In support of the above petition Mr. Naraindas C. Motiani, learned Advocate-on-Record appearing for the petitioner, has contended as follows:--
(1) That in view of subsection (1) of section 51 of the Act, the third proviso to subsection (1) of section 497, Cr.P.C., was not attracted for the reason that under clause (c) of section 9 of the Act, the offence involved, inter alia, carries death sentence as the quantity of the heroin allegedly recovered is more than one kilogram, i,e, 10 Kgs.; and
(2) that without prejudice to the above contention in any case unless the offence involved carries death sentence clause (b) of the third proviso to subsection (1) of section 497, Cr.P.C., was applicable, which provided statutory period of two years and not one year and as in the instant case the respondent was arrested on 4-2-1997, the above statutory period of two years had not expired on 10-8-1998 when he was admitted to bail.
7. On the other hand, Mr. Rana M. Shamim, learned Advocate Supreme Court appearing for the respondent had urged as under:--
(1) That the petitioner instead of filing the above petition for leave to appeal should have approached the High Court under subsection (5) of section 497, Cr.P.C. And hence the petition is not maintainable; and
(2) that since before the High Court in the earlier bail application the respondent did not contest the position that at the relevant time the Ordinance was not in force and, therefore, the alleged offences were covered under Article 3/4 of the Order, which does not contain an identical provision like section 51(1) of the Act and it does not provide death sentence.
8. We may take up the first contention of Mr. Rana M. Shamim, namely, that the petitioner instead of filing the above petition for leave to appeal should have approached the High Court under subsection (5) of section 497, Cr.P.C. And hence the petition is not maintainable. In support of the above submission he has referred to the judgments of this Court in the cases of Nazir v. Amir Din, 1971 SCM R 637, and Muhammad Ismail v. Hidayatullah, 1981 SCM R 35. In the above first case this Court allowed an appeal against the order of the High Court, whereby by the learned Sessions Judge was cancelled by the High Court in exercise of its revisional jurisdiction under section 439, Cr.P.C., on a fresh ground which was not agitated before the Sessions Judge. In the context it was held that the High Court was not justified in bypassing the order of the Sessions Judge and cancelling bail on new ground as the Sessions Judge could have been approached under section 497(5), Cr.P.C. The above case has no application to the case in hand. In the present case the question involved is as to whether the learned Division Bench of the High Court was justified in granting bail to the respondent on the ground of statutory delay. In the above second report this Court declined to grant leave against the order of the High Court cancelling bail under subsection
(5) of section 497, Cr.P.C., on the ground that the High Court was entitled to examine the question of cancellation of bail from various angles under section 497(5), Cr.P.C. And the cancellation of bail does not amount to review of the earlier order. This case has also no relevance to the present controversy. It has been held that the State or an aggrieved party cannot approach the Supreme Court for cancellation of bail through a petition for leave to appeal if the bail is granted by the High Court on a ground which is not legally sustainable.
9. We may now take up Mr. Motiani's above first contention, namely, that in view of subsection (1) of section 51 of the Act, the third proviso to subsection (1) of section 497, Cr.P.C., was not attracted for the reason that under clause (c) of section 9 of the Act the offence involved, inter alia, carries death sentence as the quantity of the heroin allegedly recovered is more than one kilogram, i,e, 10 Kgs. In this regard it may be instructive to reproduce sections 51 and 9 of the Act, which read as follows:-- SECTION 51 OF THE ACT "51. No bail to be granted in respect of the 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."
SECTION 9 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 punished 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 up to one million rupees, if the quantity of 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."
10. The perusal of the above-quoted subsection (1) of section 51 of the Act indicates that it excludes the application of sections 496 and 497 of the Cr.P.C. By incorporating a non obstante clause by providing that notwithstanding anything contained in sections 496 and 497 of the Criminal Procedure Code, 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, whereas the above-quoted subsection (2) of section 51 of the Act lays down that in the case of other offences punishable under the 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.
11. It may further be noticed that section 9 of the Act provides punishment for contravention of sections 6, 7 and 8 under above-quoted clauses (a), (b) and (c). In the instant case relevant clause is clause (c) which provides sentence of death or imprisonment for life or imprisonment for a term which may extend to fourteen years besides imposition of fine up to one million rupees if the quantity of narcotic drug, psychotropic substance or controlled substance exceeds the limits specified in clause (b), namely, one. Kilogram.
12. We are, therefore, inclined to hold that in view of the above-quoted subsection (1) of section 51 read with clauses (b) and (c) of section 9 of the Act, the third proviso to subsection (1) to section 497, Cr.P.C., cannot be pressed into service in a case in which the quantity of narcotic drug or psychotropic substance or controlled substance exceeds one kilogram and which may entail, inter alia, death sentence. The above conclusion is in line with judgment of this Court in the case of State v. Syed Qaim Ali Shah, 1992 SCM R 2192, which has been cited by Mr. Motiani and reliance has been placed on para. 22 thereof, which reads as follows:-- "22. As regards the question, whether the High Court can grant bail to a convict during the pendency of his appeal, it may be observed that in the Allied Bank case as well as in the case of Abdul Khalid (supra) decided by a Full Bench of the Sindh High Court, it has been held that since application of section 426, Cr.P.C., has been expressly excluded by subsection (1) of section 7 of the Act which, inter alia, deals with the power of the High Court as an appellate forum, no bail can be granted by the High Court or by any other Court to a convict during the pendency of his appeal under section 7(1) of the Act before the High Court. However, in Abdul Khaliq's case (supra), it has also been held that since the jurisdiction of the High Court under section 561-A, Cr.P.C., has not been specifically and categorically taken away, the above provision can be pressed into service in an appropriate case which can be called a case of hardship. This Court in the Allied Bank case though was inclined to favour invocation of above section 561-A in the case of inordinate delay but had left the above question open.
' I am inclined to hold that during the pendency of an appeal the High Court cannot release a convict on bail in view of the exclusion of the application of section 426, Cr.P.C. By section 7(1) of the Act and that the power to release a convict during the pendency of his appeal cannot be pressed into service by the High Court as an ancillary or incidental or independent from section 426, Cr.P.C., as has been held in Mirza Jawad Beg's case, Ubedullah's case, Muhammad Yaqub Ali's case and the case of Syed Zeeshan Akhtar Zaidi (supra). The above exclusion seems to have rationale as there is a marked distinction between a case in which a person is facing trial for an offence allegedly committed by him and a case in which a competent Court has recorded a finding of guilt against the accused person. It is a cardinal principle of criminal jurisprudence that an accused person is presumed to be innocent till the time his guilt is proved beyond reasonable doubt by the prosecution and, therefore, an accused person during the trial stands on different footing, than an accused person against whom a competent Court has returned the verdict of guilt, as in the latter case the above presumption of innocent disappears. Keeping in view the above-marked distinction, Hamoodur Rehman, C.J., in the case of Abdul Karim and others v. The State 1969 SCM R 312 (supra) while declining leave against the order of the erstwhile High Court of West Pakistan, Lahore, refusing to grant bail after conviction for a bailable offence, held that there can be no such general rule that in every case where a person is convicted of a bailable offence, he must be enlarged on bail during the pendency of the appeal and that section 426, Cr.P.C., clearly gives a discretion to the High Court to grant or refuse bail although this discretion must like all other discretions be exercised upon sound and judicial principles."
' Since subsection (1) of section 51 of the Act expressly excludes the application of sections 496 and 497, Cr.P.C., the ratio of the above-cited portion- of the judgment in the case of State v. Syed Qaim Ali Shah is applicable to the case in hand.
' We may observe that the factum that the learned Additional Advocate-General, Sindh, in the above earlier Criminal Bail Application No,1872 of 1997, decided by a Division Bench of the High Court of Sindh, did not controvert the factum that the Ordinance had expired on 30-10-1996 and that the application was allowed to be argued on the assumption that Article 3/4 of the Order were applicable would not negate the application of the above provisions of subsection (1) of section 51 read with section 9(c) of the Act on 10-8-1998 as admittedly on the above date the Act was very much in force and the above provisions were applicable. It may further be observed that section 32 of the Act overrides other law by providing that the provisions of the Act shall have effect notwithstanding anything contained in any other law for the time being in force.
' As regards Mr. Motiani's above second submission, it may be observed that even if it is to be conceded for the sake of argument that the application of the third proviso to subsection (1) of section 497, Cr.P.C., has not been excluded by subsection (1) of section 51 of the Act (which seems to be incorrect), since clause (c) of section 9 of the Act, inter alia, carries sentence of death), the statutory period of delay would be two years under clause (b) of the above third proviso to section 497, Cr.P.C. As, admittedly, in the above case the period of the two years had not expired from the date of arrest (i,e, 4-2-1997) on 10-8-1998 when the bail was granted, and therefore, bail could not have been granted on the ground of statutory delay.
' We have, therefore, converted the above petition into an appeal and disposed of by a short order of even date, which reads as follows:-- "For the reasons to be recorded later on, the above petition is converted into an appeal. The High Court order dated 10-8-1998 is set aside and the bail is cancelled. The respondent shall be arrested as per law. However, the trial Court is directed to expedite the disposal of the case within six months."
' The same is incorporated as part of the judgment.