' ZAHID KURBAN ALAVI, J.--- Through this order we shall dispose of above bail application. The applicants have been charged for committing an offence . Under sections 6, 7, 9, 12, 14 and 15 of the Control of Narcotic Substances Act, 1997 in connection with Crime No,2 of 1998 of Anti-Narcotic Force. Sukkur.
' Briefly the facts are that on 8-7-1998, complainant Zulfiqar Ali Soomro, Inspector of Anti-Narcotic Force, Sukkur lodged report that whilst patrolling in Larkana City and in the district they received spy information that narcotic was being sold in the Otaq of Gul Hassan Dero. The complainant reached the place and found four persons there who were apprehended and from whom 20 Kgs.
Of Charas was found lying in front of accused Anwar Ali and Hamid Ali Shah. 250 grams of heroin powder was recovered from Ali Bux and 250 grams from Ghulam Qader, 10 grams of Charas was sealed and 10 grams of heroin powder were put in polythene bags for chemical analysis. The police secured a weighing scale and 2 weights 150 grams including some cash. Mashirnama was prepared of arrest and recovery. The accused persons informed that the Otaq was'owned by Gut Hassan Dero and Aijaz Ali Memon who were supposed to he selling the narcotics on commission basis. The case was registered and the accused were arrested. They were arrested on 8-7-1998 and arc still confined. Apparently a bail application was moved on the ground of statutory delay which was dismissed. The Court while dismissed the bail application has observed that prisoners did not have any Advocate. He has also observed that the delay in trial has been caused due to dispute over the report of Chemical Examiner. According to him the charge has been framed and process have been issued against the P.Ws. Since a large quantity of drugs has been recovered, therefore, they were construed hard and dangerous criminals hence their application for bail was dismissed.
' When this case was put up, the counsel for the accused merely relied on the concept of statutory delay and insisted that the provisions of the law were mandatory in nature and hence bail should be granted. In order to justify his stand on statutory delay he has produced the certified copies of the case diaries from 24-7-1998 upto 28-7-2000. The counsel has also produced certain orders of this Court where it has been observed that even this present bail application was being continuously adjourned purely due to non-availability of the Special Prosecutor. Attention was aLa drawn to the fact that in spite of repeated notices, the Special Prosecutor failed to turn up and proceed with the case. Since the bail application has been moved in November, 2000, therefore, it would be apparent from the record that further delay is again being caused for no fault of the accused.
' The learned counsel in support of his contention has relied upon the case of Gul Zaman v. The State 1999 SCM R 1271. In this case a Full Bench of the Honourable Supreme Court has granted bail in spite of the apparent' bar for granting bail under section 51. According to the Honourable Supreme Court the provision of sections 496, 497 and 498, Cr.P.C. Were not totally barred in respect of cases under the said Act. Accordingly they have further observed that perhaps prohibition could be in respect of the offence punishable with death but bail could be allowed in other suitable cases.
They have also observed that if accused was behind bars for more than one and a half years and no charge has been framed bail should not be denied. Here the Honourable Supreme Court even went a step further and observed that bail cannot be refused to accused arrested only on suspicion simply for the reasons that the offence shown in the F.I.R. Was punishable with death. He has also relied on the reported case of Liaquat Ali v. The State 2000 PCr.LJ 1317. In this case accused had been behind bars for more than one year but trial has not still concluded. In fact the directions were issued to the trial Court by High Court to record evidence of material witnesses but the trial Court still failed in spite of directions. Under the circumstances bail was granted. Learned counsel has also relied on Munawar Hussain Manj v. The State 2000 SCM R 1585 again in this case the accused was behind bars for last two years and the case was not decided. The accused was also found suffering from heart disease and asthma. Bail was granted by the Honourable Supreme Court. The counsel also relied on the case of Akhtar Hussain Shah v. The State 1999 PCr.LJ 225. In this case one of the co-accused was granted bail and rule of consistency was applied. Further the Court observed that since two different charges were leveled for punishment in respect of one offence, the law prescribing lesser punishment was to be taken in to account for the purpose of bail. Bail was granted. The counsel also relied on the case of Ashok v. The State 1997 SCM R 436. In this case Full Bench of the Supreme Court disposed of the bail application with the direction to the trial Court that the trial should be concluded within one month and in case of failure to conclude trial, the accused would be deemed to have been granted bail and would be enlarged on bail by the trial Court. The learned counsel also relied on an unreported case of this Court where a Division Bench granted bail in respect of Narcotics case, as the alleged quantity of Charas was not secured from the possession of the applicant and no independent Mashirs had been associated with the case. Learned counsel also relied on an unreported case of this Court in Criminal Bail Application No,138 of 1999 (Abdul Majeed v. The State). In this case, the Excise Police apprehended the accused who was alleged to be involved in drug traffic. The bail in this case was granted as apparently a confession of the accused before Police Officer was not considered admissible in evidence.
Reliance was also placed on unreported in Criminal Bail Application No,41 of 1999 (Irshad All v. The State) where bail was granted on the ground of statutory delay. At the instance of the Court, the attention of the counsel for the applicant was "drawn to a reported judgment Mehboob Rehman v.
The State 2000 PCr.LJ 569, where the bail applications were dismissed on the ground that the trial Court has already framed a charge. This case was also related to narcotics. Another unreported case of Criminal Bail Application No,192 of 1998 (Gul Hassan v. The State). In this case bail was granted even though the recovery was of more than 1200 grams of Charas and heroin. In this matter my brother Justice Anwar Zaheer Jamali had disagreed with the contention of my brother Abdul Hameed Dogar, J. (as he then was) and the matter was referred to a third Judge. The matter was referred to a referee and my brother Dr. Ghous Muhammad, J. (as he then was) agreed to the contention of Abdul Hameed Dogar, J. The bail order was confirmed. Learned counsel has also drawn to our attention to a reported judgment of a Full Bench i,e, The State v. Syed Abdul Qayoom 2001 SCM R 14, it was observed by he Full Bench that the High Court had powers to grant bail despite the provisions of section 51 of Control of Narcotic Act, 1997.
' From the record it seems that on 21-44999 accused Aijaz Ali, Hameed, Mehmood Ali, Moosa and Zahoor Ahmed were discharged in absentia for want of evidence against them, the case was thereafter proceeded against Anwar Ali, Ali Bux, Ghulam Qadir, Ali Hassan and Gul Hassan. A delay also took place first on account of the above gentlemen being declared .As absconders and in spite of efforts N.B.Ws. Could not be served. A further delay took place due to the late receipt of Chemical Report. Ultimately the chemical report was received on 24-5-1999. Thereafter, the delay was due to the non-receipt of case property. On 7-6-1999 apparently an order was passed as there were two Chemical Reports on record where one showed negative, the other showed positive, clarification was sought. At this stage application under section 265-K, Cr.P.C. Was also filed. One of the accused Gul Hassan had moved a bail application which was ultimately heard and it was granted on 1-7-1999. The application under section 265-K was dismissed as not pressed. On 18-9- 1999 the case property which was lying in Court was re-examined and samples were collected so that a fresh report may be submitted. After considerable delay a fresh report was received. It is also noted that repeatedly the matter was being adjourned for framing of charge. Ultimately on 29-7-2000 an order was passed that the case was to be fixed on 23-8-2000 for framing of the charge. Further, on 23-8-2000 it was adjourned to 11-9-2000. On 11-9-2000 it was again adjourned. .Ultimately the charge was framed on 26-9-2000 and the bail application which had been filed and remained pending was once again adjourned. A charge has to be framed within a reasonable period. In this case as is apparent from the case diaries it took the trial Court two years to frame a charge. Even if an accused is charged with indulgence in activities which are not approved by the society, the society which claims to be looking after the law and order situation and as custodians of law should follow the law in toto, such delay tantamounts to negligence and defeats the very purpose behind which civilized societies pride themselves having a legal order which serves as a shining examples to others. The narration of the facts as taken from the case diaries in fact creates a doubt as regards the prosecution case.
' We have considered in detail all the case-laws cited above and the contentions of the counsel for the applicant including the documents produced by him. We have also noted that the counsel appearing on behalf of the State resisted the grant of bail primarily on the ground that the accused were involved with drugs and as such were hardened and dangerous criminals and were not entitled to the benefits of the bail. Learned counsel also relied on section 51 of the Act which according to him is a clear bar against the grant of bail.
We have considered all aspects of the case and the case-laws cited above and considering the fact that the person has been behind the bars for more than two years and that the case has not proceeded and in fact delay has occurred due to no fault of the accused. The bail' application is granted in the sum of Rs,2,00,000 each and P.R. Bond in the like amount to the satisfaction of Additional Registrar of this Court.
(Sd.) Zahid Kurban Alavi, Judge, dated 23-4-2001.
S.A. RABBANI, J.--- I have the benefit of going through the order passed by my learned brother, but with due deference;. I find myself unable to agree that, under the law, the applicants are entitled to bail in this case. It has been reported that charge has been framed on 26-9-2000 under section 9(c) of the Control of Narcotic Substances Act. In the case of Mehboob Rehman v. The State 2000 PCr.LJ 569 (Karachi), after considering the cases of State v. Mobeen Khan Criminal Petition No,53-K of 1998 and Gul Zarnan v. The State 1999 SCM R 1271 we have already held that in case a charge has framed for an offence relating to Narcotics, punishable with death, the Court has no jurisdiction to grant bail and section 51(1) of Control of Narcotic Substances Act operates as a complete bar. I do not see any reason to deviate from that view, because, in that case, section 51(1) of C.N.S. Act would become totally redundant. In case there is material creating a doubt in the prosecution case, which is fatal, the applicants may apply for acquittal under section 265-K, Cr.P.C. Since section 51(1) of C.N.S. Act prohibits applicability of section 497, Cr.P.C. In such cases, delay in the trial, which is a ground for bail under this section, would not applicable. I am of the view that the applicants are not entitled to bail at this stage on the ground of third proviso to section 497(1), Cr.P.C. I would, therefore, reject the bail plea.
(Sd.) S.A. Rabbani, Judge dated 23-4-2001.
' Muhammad Ayaz Soomro for Applicants.
' Nemo for A.N.F.
' Altaf Hussain Surhio for the State.
' ATA-UR-REHMAN, J.--- This bail application is filed by Anwar Ali Bhutto and Ali Hassan Dero who are involved in Crime No,2 of 1998 of A.N.F., Sukkur under sections 6, 7, 9, 12, 14 and 15 of the C.N.S. Act, 1997.
2. The bail is being sought on the ground of delay in the proceedings. The applicants were arrested on 8-7-1998 and since then they are in continuous custody and the proceedings have not concluded so far.
3. It would be advantageous to reproduce the provisions of section 51 of the Act, 1997 hereinafter referred to as the Act:-- "Section 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 substantial amount."
4. The bail application was placed before a D.B. Consisting, of learned Zahid Kurban Alavi and S.A.
Rabbani, JJ. Learned Zahid Kurban Alavi, J. Allowed bail whereas learned S.A. Rabbani, J. Refused the same. The Honourable Chief Justice referred the matter to me for third opinion.
5. I heard the counsel for the applicant. The matter was adjourned from time to time for the appearance of Sheivk Ram counsel for the A.N.F. And he appeared before the Court on 31-8-2001, he was not ready, therefore, matter was adjourned 3-9-2001 and he failed to appear on all future dates.
6. I examined the orders passed by my learned brothers. It may be observed that from time to time in a effort to get criminal cases expedited and disposed of at the earliest number of special enactments were brought into field which also created Special Courts to achieve the' purpose.
Control of Narcotic Substances Act, 1997, the Anti-Terrorism Act, 1997, Suppression of Terrorist Activities (Special Courts) Act, 1975 are such examples. In all these enactments, the provisions of bail have been restricted; because the Special Courts were supposed to conclude the trials with a quicker space of weeks and months. It, however, appears that the said efforts would not yield desired results. In such Courts, hundreds and some time thousands of cases are pending and it is not possible to conclude the trials as envisaged in the Special Laws. The result is that the bail applications are pouring in before this Court inter alia on the ground of delay in the conclusion of trials. This problem can be resolved either by establishing required number of Courts and removing the causes for delay in proceedings or through appropriate legislation keeping in view the ground realities.
7. The administration of justice requires that a matter should proceed and be adjudicated expeditiously. If an accused deserved to be hanged for the offence alleged against him, he should be tried without unreasonable delay and executed. It would not be just from any angle of administration of justice that in a case where only two or three witnesses are to be examined, first the accused may be left to languish in jail for years and thereafter try and execute him. This situation is applicable in the present case as well. The applicants are charged with an offence punishable death; only two or three witnesses are to be examined for final adjudication; but no material progress has been made in the last three years; and nothing can be said as to when their trial will conclude.
8. In the case Mehboob Rehman v. The State 2000 PCr.LJ 569 which is referred by learned S.A.
Rabbani, J. In his order while agreeing with the legal proposition that section 498, Cr.P.C. Is not applicable to the cases of the Act. Learned Sabihuddin Ahmed, J. In a separate note observed as under:-- "I 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 Gul Zaman v. The State 1999 SCM R 1271."
9. It may be pertinent to reproduce the following observation in the case of State v. Qaim Ali Shah 1992 SCM R 2192 which appears in paragraph 23 at pages 2220 and 2221:--- "The question which needs further consideration is, as to whether in no case during the pendency of an appeal the High Court can release a convict on bail or can it press into service section 561-A, Cr.P.C. In the case of Lala Jairam Das and others v. Emperor AIR 1945 PC 94 the Privy Council has held that Chapter 39 of the Code of Criminal Procedure together with section 426 contains a complete and exhaustive statement of the powers of a High Court in India to grant bail and excludes the existence of any additional inherent power in a High Court relating to the subject of bail and that section 561-A of the Code confers no such power.
' The above judgment of the Privy Council was followed by this Court in the case of Muhammad Samiullah Khan and another v. The State PLD 1963 SC 237, in which it has been held that jurisdiction under section 561-A, Cr.P.C. Is not available where other express.Remedy is provided by the Code.
' In the case of Ghulam Muhammad v. Muzammal Khan and 4 others PLD 1967 SC 317, this Court reiterated the above legal proposition by holding that jurisdiction under section 561-A, Cr.P.C. Is not an alternative or additional jurisdiction and it is not to be used to divert ordinary course of criminal procedure. The same view was taken in a subsequent case, namely, in the case of Khawaja Fazal Karim v. The State and others 1996 SCMR 483. It is, therefore, evident that section 561-A, Cr.P.C.
Cannot be invoked in aid where there are express provisions dealing with a particular subject, for example, section 426, Cr.P.C. Empowers an Appellate Court to suspend the sentence or to admit a convict to bail during the pendency of a criminal appeal against conviction. In presence of above express provision in the Code, section 561-A, cannot be pressed into service nor the above provision can be used to defeat the express intention of the Legislature, for example, in the present case subsection (1) of section 7 of the Act excludes the application of section 426, Cr.P.C. During the pendency of an appeal under the Act before the High Court. If the High Court was to invoke section 561-A, Cr.P.C. Because of the above exclusion of section 426, Cr.P.C. It may amount to defeating the legislative intent.
However, it may be pointed out that the exclusion of the application of section 426, Cr.P.C. By virtue of section 7(1) of the Act during the pendency of an appeal of a convict before the High Court is founded on the assumption that the appeal would be disposed of within three months as provided in subsection (2) of above section of the Act, but in case an appeal of a convict remains pending for a number of years either on account of delaying tactics of the part of the prosecuting Agency or because of the heavy work load of the Court, would it be fair and just to deny him bail on the ground of delay. In my view, since it has been held by this Court in more than one cases already referred to hereinabove in para. 21 that the delay in prosecution of a criminal case amounts to abuse of process of Court/law warranting grant of bail, the High Court in a case of above nature may press into service section 561-A, Cr.P.C., but not as a matter of course or as a substitute to section 426, Cr. P. C. The delay should be of the nature which may be repulsive and unconscionable." (italics are mine).
10. Observations made hereinabove by me and also by learned Sabihuddin Ahmed, J. In the case of Mehboob-ur-Rehman (supra) are in consonance with the law laid down by the Honourable Supreme Court in the case of Qaim Ali Shah (supra). A perusal of section 51 of the Act clears that the Legislature had not excluded the provisions of section 561-A, Cr.P.C. It is, therefore, open for the Courts to press it in appropriate and hardship cases.
11. Even if sections 497 and 498, Cr.P.C. Are not applicable in the Act, 1997, the appropriate and hardship case like the one in hand would attract the provision of section 561-A, Cr.P.C.
' In the given circumstances the applicants deserve concession of bail. This bail application is, therefore, allowed on the conditions placed by learned Zahid Kurban Alavi, J.