The Supreme Court has set aside the Islamabad High Court order to grant post-arrest bail to a person apprehend by Anti-Narcotics Force (ANF) in drugs smuggling case and directed the IHC to decide the case afresh. Chief Justice Asif Saeed Khan Khosa, heading a three-judge bench, after hearing the arguments of counsels on August 21, 2019 had reserved the judgment, which was uploaded on the SC website on Saturday. The court said during the interregnum the respondent shall be deemed to be on ad-interim post-arrest bail which the High Court may or may not confirm.
Anti-Narcotics Force (ANF) had challenged the IHC 16.05.2019 order to grant post-arrest bail to Qasim Ali Shah (respondent). An FIR was registered against Qasim under sections 9(c) and 15 of the Control of Narcotic Substances Act, 1997. According to the prosecution, the respondent was apprehended red-handed while sitting in a motorcar from which hashish weighing 1,600 grams, cocaine weighing 57 grams, ice weighing 10 grams and some other intoxicants were recovered during search.
However, the IHC on the basis of Lahore High Court (LHC) judgment in Ghulam Murtaza case (PLD 2009 Lahore 362) granted bail to Qasim observing that the accused was not likely to be punished for a period of imprisonment due to prohibitory clause contained in subsection (1) of section 497, CrPC, as the co-accused of the respondent was not apprehended at the spot.
The apex court order stated: "We, however, have not been able to find the said grounds weighing with the High Court to be valid or sufficient for the purpose of admitting the respondent to post-arrest bail because all the said considerations were in derogation of the law."
Justice Khosa said that the Supreme Court in Socha Gul case (2015 SCMR 1077) had observed that the sentencing guidelines issued by the Lahore High Court in Ghulam Murtaza case are not relevant at the stage of bail or during the trial.
Failure of the raiding party to apprehend the respondent's co-accused could hardly react upon the merits of the respondent's case for bail. The Section 51 of the Control of Narcotic Substances Act, 1997 clearly ousts application of the provisions of section 497, CrPC to the cases under the Control of Narcotic Substances Act, 1997 and, thus, any reference to subsection (2) of section 497, CrPC, by the High Court while admitting the respondent to bail was uncalled for.
The court observed that the merits of the case against the respondent had not been attended to by the IHC at the time of passage of the impugned order. It shall, therefore, be fair and proper if instead of cancelling the respondent's bail, an opportunity may in the first instance be afforded to the High Court to attend to the merits of the case against the respondent for the purposes of his admission to bail.
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