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Criminal Bail Application No. 631 and Miscellaneous Application No. 712 of 1986, decided on 29th June, 1986.
‑‑‑S. 497‑‑Prohibition (Enforcement of Hadd) Order, (4 of 1979), Art-4‑‑Bail, grant of‑‑Applicant found in possession of Heroin and offence punishable under Art. 4 of Order; 1979‑‑Contention that offence being punishable in alternative with minimum imprisonment for 2 years, bar contained in S. 497(1), Cr.P.C., against grant of bail, was not attracted. repelled‑‑Offence under Art. 4 of Order, 1979, being punishable with imprisonment for life, held, would not take offence outside exception provided under S. 497(1), Cr.P.C.‑‑Bail refused, in circumstances of case.
Muhammad Akhtar v. The State 1984 P Cr. L J 2340; Safar Ali v. The State 1936 P Cr. L J 2571 and Ghulam Mustafa v. The State 1965 P Cr. LJ 2479 ref.
M.M. Kazi for Applicant.
Abdul Ghafoor Mangi, A . A ‑G. for the State.
The applicant was found to be in possession of 220 grams of Heroin. The contraband Heroin was recovered from his possession by A.S.I. Rana Muhammad Ashraf in presence of two Mashirs, namely, Muhammad Aslam and Muhammad Iqbal.
According to Article 4 of the President's Order 4 of 1979, second proviso, possession of Heroin is punishable with imprisonment for life or imprisonment which is not less than 2 years, or punishment not exceeding 13 stripes. Besides that the offender may also be made liable to pay fine.
The main contention of Mr. M. M. Kazi, learned counsel for the applicant is, that since the alleged offence is punishable with imprisonment for life or in the alternative, with imprisonment which is not less than two years, the bar contained in section 497(1), Cr.P.C. against grant of bail in case of offences punishable with death or imprisonment for life or imprisonment for 10 years is not to be made applicable in the instant case. Additionally, it was argued that Mashirs of recovery of the contraband Heroin were not independent, as they were procured by the police themselves.
In respect of the first submission reliance was placed by Mr, Kazi on Muhammad Akhtar v. The State 1984 P Cr. L J 2340 and Safar Ali v. The State 1986 P Cr. L J 2571 wherein it was held by a learned Single Judge of this Court that when two alternative punishments, one of imprisonment another of fine were provided for an offence, it was difficult to hold that such offence was exclusively punishable with either of punishments. It was, therefore, held that such offence was not covered by restrictions imposed by section 497, Cr.P.C.
It is true, that the second proviso to Article 4 of the President's Order 4 of 1979 provides for alternative punishments, which may either be imprisonment for life or imprisonment which may not be less than two years. However, that does not take away the case of the applicant outside the purview of the bar contained in section 497(1), Cr.P.C Relevant provisions of section 497, Cr.P.C, may be reproduced as follows:--
"497.‑‑(1) When any person accused of any non‑bailable offence is arrested or detained without warrant by an officer‑in‑charge of a police station, or appears or is brought before a. Court, he may be released on bail but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years."
It thus appears that if there are reasonable grounds to believe that the offender is guilty of an offence punishable with death or any other imprisonment as mentioned in subsection (1) of section 497, Cr.P.C. then ordinarily, bail is not to be granted to such offender. No doubt in the two cases cited by Mr. M.M.Kazi, it has been held that restrictions imposed by subsection (1) of section 497, Cr.P.C. would not be applicable to a case where besides any of the punishments as referred to in the said subsection any other but with utmost respect, I may say that such a punishment has been provided for in the alternative, intention does not appear to have been expressed by the Legislature in section 497(1), Cr.P.C. The said subsection simply says that a person accused of a non‑bailable offence shall not be released on bail if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years. Since an offence, under Article 4 of the President's Order 4 of 1979 is punishable with imprisonment for life, the same would be covered by the bar provided in section 497(1), Cr.P.C Merely because the offender is also punishable with any other term of imprisonment which may not be less than two years, would not take the offence outside the exception provided under section 497(1), Cr.P.C. Reference in this respect may be made to Ghulam Mustafa v. The State 1985 P Cr. L J 2479 wherein similar view has been taken. The first argument of Mr. M.M.Kazi is, therefore, devoid of force.
The second contention raised by the learned counsel as regards Mashirs of recovery of Heroin powder may be considered by the trial Court at the conclusion of the trial, but the same cannot be considered for the purpose of granting of bail to the applicant. I would not like to pre‑empt the judgment of the trial Court in this respect.
Mr. Abdul Ghafoor Mangi, learned A.A.‑G. has also opposed grant of bail to the applicant.
For the aforesaid reasons, this bail application is dismissed.
S. G. D. Bail refused.
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