Atiya Bibi Vs The State

I

SHEET

IN THE PESHAWAR HIGH COURT

ABBOTTABAD BENCH

(ludicial Depurtment)

Cr.M (Bail) No. 313-N2025

Mst. Atiya Bibi wde of Rashid Ali.

(Petitioner/s)

VS

State through Syed Liaqat Shah SHO P.S Khaki Tehsil & District Mansehra.

(Respondent/s)

Present: Mr. Saeed Ahmad Awan, Advocate, for the petitioner.

Malik Amjad Inayat, learned AAG, fo, State Date of hearing: 08.05.2025

JUDGMENT

SADIO J.- This order is directed to dispose of an application filed by petitioner namely Mst. Atiya Bibi wtfe of Rashid Ali for grant of post arrest bail in case FIR No. 207 dated 13.04.2025 registered under section 11 (b) of The Khyber Pakhtunkhwa control of Narcotic dc Substances Act, 2Ol9 read with section 15-AA KPK, at Police Station Khaki, District, Mansehra.

2.As per contents of the FIR the complainant namely Syed Liaqat Shah, SHO during patrolling received spy information regarding presence of accused

/petitioner Mst. Atiya Bibi, against whom a general complaint was lodged that she was busy in selling narcotics. Upon which police attracted to the spot apprehended the accused/petitioner and during her personal search, the police recovered "ICE" weighing 725 grams along with a 30 bore pistol bearing No. A- 47689 without license. Accused was arrested on the spot. 'Murasila'was drafted which culminatedinto ibid FIR registered against the present accused/petitioner at police station concerned.

3.Arguments of learned counsel for the petitioner, as well as learned AAG appearing on behalf of State were heard in considerable detail and the record perused with their able assistance.

4.At the very outset, it is pertinent to note that, as contents of the First Information Report (FIR), the accused/petitioner has been directly and d unequivocally charged with the offence of possessing 725 grams of methamphetamine which falls within the category of a commercial quantity under the relevant provisions of the Control of Narcotic Substances Act, 1,gg7. The FIR, being the foundational document that sets the criminal law in motion, reflects that the alleged recovery was made on the basis prior information by

the informer. It is equally significant to mention that, notwithstanding the serious nature of the accusation, the police officials who conducted the raid did not, at the time of recovery, record the search and seizure proceedings using a mobile phone or any other form of video/audio surveillance device, which has now become an increasingly recommended.

5.The record further reflects that the sample parcels of recovered contraband were sent to the Forensic Science Laboratory (FSL) for analysis' However, the report is still awaited, and it has yet to be determined by the FSL whether the recovered contraband is indeed "ICE" or Some other substance.

This pending determination casts doubt on the prosecution's case and thus in the given facts and circumstances whether the prosecution would be able to bring home the punishment against the petitioner as sf provided under section 11 (b) of The Khyber Pakhtunkhwa control of Narcotic substances Act, 201g is the question which shall be determined by the learned trial court after recording of pro and contra evidence, and thus for the time being the petitioner is entitled for the grant of bail.

6.Even otherwise, it has been consistent view of the superior courts that scope of bail in case of

female accused is wider as compared to male accused The august Supreme Court of Pakistan in its judgment rendered in the case title d "Ms1.GHAZALA vs. The STATE & others" reported as 2023 SCMR 887 has held that being a woman, the petitioner's case is covered by the first proviso to section 497(l) Cr-P.C.

The said proviso makes the power of the court to grant bail in the offences of prohibitory clause of section 4g7(l) alleged against an accused under the age of fortv years, a woman accused, equal to its power under

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the first part of section 497(t), Cr.P.C. It means that in cases of women accused etc. as mentioned in the first proviso to section 497(l), irrespective of the category of the offence, the bail is to grante as a rul and refused only as an exception in the same manner as it ts granted or refused in offences that do not fall within the prohibitory clause of section 497(l), Cr'P'C"' For the purpose of deciding the prayer for grant of bail in od exercise of the discretionary power of the court under section 4g7(l), cr.P.c., the availability of a sufficient incriminating material to connect the accused with the commission of the offence alleged against him is not a relevant consideration.

7.Furthermore, the challan in the instant case is almost complete and accused/petitioner is no more

required for further investigation, therefore, keeping him behind the bars for an indefinite period would not serve any useful purpose. In a case Resham Khan & another v/s The State & qnothef' reported as 2021 SCMR 2011the Hon'ble Apex Court has observed that the basic idea is to enable the accused to answer criminal prosecution against him rather than to rot him behind the bar. Every accused is innocent until his guilt is proved and benefit of doubt can be extended to the accused even at bail stage if the facts of the case so warrant. The basic philosophy of criminal jurisprudence is that the prosecution has to prove its case beyond reasonable doubt and this principle applies at all stages including pre-trial and even at the time of deciding whether accused is entitled to bail or not'

8.In the given facts and circumstances the accused/petitioner has made out a case for the grant of bail. Accordingly, this bail application is allowed and d accused/petitioner is directed to be released on bail provided she furnishes bail bonds in the sum of Rs. 200,000/- (two hundred thousand) with two sureties each in the like amount to the satisfaction of learned trial Court/JMA4OD, who shall ensure that the sureties are local, reliable and men of means. Observations recorded hereinabove are purely tentative in nature and

should in no way prejudice an independent mind of learned trial Court during the course of trial.

2 Above are the detailed reasons of my order of even date

Announced 08.0s.202s Tahir Saleem

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