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Criminal Bail Application No. 1912 of 1986, decided on 28th January, 1986.

‑‑‑S. 497‑‑Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts. 3 & 4‑‑Sind Abkari Act (V of 1878), S. 43(3)‑‑Bail, grant of‑‑On interception of car driven by petitioners, Charas, weighing about three maunds was allegedly recovered from its cavities‑‑None of offences, petitioner charged with, punishable with ten years or more‑‑Petitioners allowed bail, in circumstances.

Muhammad Ali Shaikh for Applicants.

Rashid Tariq for the State.

The two applicants, namely, Bashir Ahmed and Saeed Ahmed, alongwith co‑accused Sanab Gul, are involved in a case registered under section 43(3) of the Sind Abkari Act, 1878, read with Articles 3 & 4 of the Prohibition (Enforcement of Hadd) Order, 1979. The prosecution case against the accused, according to F.I.R., dated 15‑10‑1986, is that on interception of a Datsun Car, in which the three accused were travelling, the "Charas" weighing about three maunds was secured. Learned Sessions Judge, Nawabshah, by his order, dated 10‑11‑1986 granted bail to co‑accused Sanab Gul on the ground that he had only been given a lift by the two applicants, but by order, dated 18‑12‑1986 the learned Sessions Judge, Nawabshah, has dismissed the bail application of the two applicants. The learned Sessions Judge has also referred to the confessions allegedly made by the applicants. On their bail applications being refused, the two applicants have moved this Court for grant of bail. I have heard Mr. Muhammad Ali Shaikh, learned counsel for the applicants and Mr. Rashid Tariq, learned counsel for the State.

In so far as the confessions are concerned, it is submitted by the learned counsel that even if the confessions are taken on their face, these are not inculpatory as, according to the said confessions, the two applicants say that they were not aware as to what was hidden in the cavities of Datsun Car, from where, according to the prosecution, the "Charas" was recovered. Then it was submitted by the learned counsel that none of the offences, for which applicants have been charged, comes within the prohibitory clause of section 497, Cr.P.C. According to the learned counsel, offence under section 43(3) of the Sind Abkari Act, 1878, is punishable with seven years and fine, which may extend to Rs.1,00,000 and under Article 3 of the Prohibition Order, 1979, the maximum punishment prescribed is five years and under Article 4 thereof the maximum punishment is two years in respect of "Charas". Learned counsel has referred to the definition‑of intoxicant given in section 2(g) of the President's Order, 1979, according to which intoxicant means an article specified in the Schedule and the Schedule specifies different types of drugs and "Charas" is mentioned separately as one such drug. Learned counsel also invited the attention of the Court to the amendment of the Prohibition Order, 1979, by President's Order 12 of 1983, by which subsection (2) was added to Article 3 and then existing Article 3 was re‑numbered as clause (1) of Article 3 and according to clause (2) of Article 3, offences in respect of some drugs were made punishable with imprisonment for life but these drugs do not include "Charas". Similarly, it was pointed out that Article 4 of the Prohibition Order, 1979, was amended by President's Order 12 of 1983, by which a second proviso was added making certain offences punishable with life imprisonment, but this second proviso also did not relate to "Charas".

Mr. Rashid Tariq, learned counsel for the State, first submitted that coca leaf and "Charas" are different names of the same drug, but apparently there is no force in this submission, as the definition of intoxicant read with Schedule to the Prohibition Order, 1979, shows them as separate drugs.

It was then submitted by the learned counsel for the State that even offences relating to transportation of "Charas" are punishable with life imprisonment. However, no amendment in the Prohibition Order, 1979, or the Sind Abkari Act, 1878, could be shown by the learned counsel for the State to that effect.

It is apparent that none of the offences, for which the applicants have been charged, is punishable with ten years or more. The confessions, apparently are not inculpatory. It has not been shown why concession of bail should not be extended to the applicants when their case is not covered by the prohibitory clause of section 497, Cr.P.C. In my view, the applicants are entitled to bail.

Criminal Bail Application No. 192 of 1986 is granted and it is directed that Bashir Ahmed son of Yar Mohsin Pathan and Saeed Ahmed son of Waheedullah Pathan be released on bail on their furnishing one surety in the sum of Rs.75,000 each with P.R. Bond in the like amount to the satisfaction of the learned Sessions Judge, Nawabshah.

S. G. D. /B‑3/ K Bail allowed.

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