The petitioner, Zahid Hussain, is seeking post arrest bail in case F.I.R. No,90 of 1999, dated 7-3-1999, registered at Police Station, Ruhelanwali, for the offences under Art.3/4 of Prohibition (Enforcement of Hadd) Order IV of 1979, at the instance of complainant, Farid Bakhsh, A.S.I., in regard to the apprehension of the petitioner on the spot for illegally possessing heroin weighing 15 grams.
2. The petitioner was arrested on 7-3-1999 and the Additional Sessions Judge, Muzaffargarh, has dismissed his application for the grant of post-arrest bail on 24-4-1999. Investigation is complete and the challan has been submitted in the Court of Magistrate. Section 30, Muzaffargarh.
3. It is contended by the learned counsel for the petitioner that from the bare reading of the F.I.R., the provision of Article 3 of the Prohibition (Enforcement of Hadd) Order ILV of 1979 is not attracted because there is no allegation of sale of narcotics against the petitioner. In regard to possession, it is contended that the same offence falls under section 9-A of Narcotic Substances Act, 1997 which is punishable with two years R.I., hence, the petitioner is entitled to the grant of bail because the same does not fall within the prohibitory clause of section 497, Cr.P.C. The contentions have been opposed by the learned counsel for the State and it is argued that challan has been submitted against the petitioner under Articles 3 and 4 of the above said order in the Court and under Article 4 punishment of life imprisonment is provided and, therefore, the petitioner is not entitled to the grant of bail.
4. There is no allegation of sale of narcotics against the petitioner, therefore, the provisions of Article 3 of the above said Order are not attracted.
5. The case was registered against the petitioner subsequent to the enactment of Control of Narcotic Substances Act, 1997. Section 74 of this Act is as under:- "If an offence punishable under this Act, is also an offence in any other law for the time being in force, nothing in that law shall prevent the offender from being punished under this Act: Section 76 of the above said Act contains the overriding clause and provides that 'The provisions of this Act shall have effect notwithstanding anything contained in any other law for the time being in force' "
6. The provisions similar to sections 74 and 76 of the Control of Narcotic Substances Act, 1997 were provided in the Control of Narcotic Substances Ordinance, 1997. In similar situation in Dost Muhammad v. The State 1998 PCr.LJ 1227 (Lahore), a learned Single Judge of this Court held that "the joint reading of section 79 and section 81 of the Ordinance (Control of Narcotic Substances Ordinance, 1997) makes it clear that the provisions of the Ordinance had overriding effect for those matters not covered by proviso to section 79 thereof (now proviso of section 74 of Control of Narcotic Substances Act, 1997), therefore, the case against the petitioner ought to have been registered under the provision of the. Ordinance and the same law could be followed for the trial and conviction of the petitioner. Looking for another angle, I am of the opinion that the provisions of the Ordinance (now the above said Act) being more favourable and beneficial to the accused- petitioner, should attract to and applied in the present case and cannot be left to the discretion of the prosecuting agency," Having been guided by the observations made by the learned Single Judge in the above mentioned judgment, I am also of the view that at the time when the petitioner was involved in the present case, the Control of Narcotic Substances Act, 1997 had already come into existence and the offence, as alleged against the petitioner, also falls under the above said Act and the Act having the abovementioned overriding provisions, the petitioner will be tried and convicted under the Control of Narcotic Substances Act, 1997 and in view of the law laid down in the abovementioned judgment, the prosecution has wrongly involved the petitioner under Article 3/4 of 'the Prohibition (Enforcement of Hadd) Order IV of 1979 and has illegally not registered a case against the petitioner under the provisions of the Control of Narcotic Substances Act, 1997.
7. Section 9-A of the Act provides punishment of two years for the person who is found in possession of heroin weighing less than 100 grams. Allegedly, the petitioner was found in possession of 15 grams of heroin, therefore, under section 9-A of the above said act, the petitioner 'can be awarded maximum punishment of two (2) years. His case does not fall within the prohibitory clause of section 497, Cr.P.C. The petitioner was arrested on 7-3-1999 and there is no likelihood of the conclusion of the trial in the near future. The application is, therefore, allowed and the petitioner is granted bail subject to his furnishing bail bond in the sum of Rs,50,000 with one surety in the like amount, to the satisfaction of the trial Court.