PESHAWAR: The Peshawar High Court has issued a notice to the provincial government to respond to a petition challenging the refusal of the district courts to take up bail pleas of the people arrested under a new provincial anti-narcotics law and seeking orders to declare the practice illegal and unconstitutional.

Chief Justice Waqar Ahmad Seth and Justice Abdul Shakoor accepted for hearing the petition filed by advocate Shabbir Hussain Gigyani and fixed Feb 11 for the next hearing asking the government to respond to the petition on that date.

The petitioner requested the court ask the district judiciary to hear bail pleas in the cases registered under the KP Control of Narcotics Substance Act, 2019.

He sought the court’s orders to declare the local courts’ refusal to hear bail petitions under sections 497 and 498 of the Code of Criminal Procedure in cases registered under the new narcotics law ‘unlawful and against fundamental rights of the public at large of the entire province’.

The respondents in the petition are all district and sessions judges and the PHC Secretariat District Judiciary.

PHC accepts petition on the issue for hearing

Provincial advocate general Shumail Ahmad Butt appeared in the case and said the government had been preparing a bill to make amendments to the law to remove certain flaws, including the provision related to bail.

The bench observed that on next date it would see the developments over the issue.

In the ongoing strike by lawyers across the province, one of the major demands of the KP Bar Council is to make amendments to the narcotics law to remove certain lacunas, especially the unavailability of bail provision in it.

Recently, the high court was flooded with petitions seeking bail for drug suspects under the new law due to the refusal of the lower courts to hear them.

The petitioner has stated that the provincial government enacted its own special law for the control of narcotics substances and drugs i.e. the Khyber Pakhtunkhwa Control of Narcotics Substances Act, 2019.

He said under Section 59 of the new law, the federal law, Control of Narcotics Substances Act, 1997, (Act No. XXV of 1997), was repealed to the extent of cultivation, possession, selling, purchasing, delivery, and transportation etc, within KP.

The petitioner said after the Supreme Court delivered a judgment under the CNSA 1997, seeking of bail from trial courts, high courts and Supreme Court under the CrPC read with Section 51 of CNSA had been in practice.

He said after the enactment of the KPCNSA 2019, the district judiciary declined to entertain bail petitions in cases registered under the new law insisting the new law didn’t have any specific provision for bail, Section 497 CrPC doesn’t apply as the CrPC was now applicable only to the extent of trials and appeals, and Section 51 of CNSA can’t be availed due to the repealing of CNSA, 1997.

The petitioner said the legal vacuum not only created a chaos in public at large on one side and also deprived them from seeking speedy justice.

He said no specific provision for bail had been provided in KPCNSA, while there was also no specific clog on availing the remedy of bail under sections 497 and 498 CrPC.

Published in Dawn, January 18th, 2020