Imtiaz vs State

2014 Y L R 892

[Peshawar]

Before Mrs. Irshad Qaiser, J

IMTIAZ---Petitioner

Versus

The STATE---Respondent

Criminal Miscellaneous Bail Petition No.1446-P of 2012, decided on 3rd December, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession and trafficking of narcotic---Bail, grant of---Narcotic present in boot (diggi) of vehicle---Conscious knowledge of passenger in vehicle of the presence of the narcotic---Scope---Charas weighing 19 kilograms was recovered from the boot (diggi) of a vehicle and accused was allegedly sitting on the front seat of the said vehicle, which was being driven by the co-accused---Accused was neither driver nor owner of vehicle but was alleged to be a mere passenger---Nothing was recovered from immediate possession of the accused---Neither any evidence showed that accused was in conscious knowledge of the presence of contraband in the boot (diggi) of the vehicle nor anything on record showed that he was convicted or involved in cases similar to the present one---Accused was released on bail in circumstances.

Bail Petition No.1091 of 2011, decided on 1-8-2011 rel.

Noor Alam Khan for Petitioner.

Matiullah Balooch for the State.

Date of hearing: 3rd December, 2012.

JUDGMENT

MRS. IRSHAD QAISER, J.---Petitioner Imtiaz son of Ghulam Muhammad resident of Kodinka, Mardan seeks his release on bail in case F.I.R. No. 911 dated 19-9-2012 under section 9(c) C.N.S.A. of Police Station Chamkani Peshawar was refused bail by learned ASJ- IX/Judge, Special Court, Peshawar vide order dated 11-10-2012. Now he has approached this Court for the same relief.

2.As per contents of the murasila Gul Muhammad Khan, A.S.-I. along with other Police Officials was on Gasht when he received information that huge quantity of charas would be smuggled through motorcar XLI. On this information he started search of the car. In the meanwhile on 19-9-2012 at 1500 hours the motorcar No.RE-445 Islamabad was sighted coming from Peshawar side, which was signalled to stop however, driver accelerated the speed of car and by taking U-turn he tried to run away. The car was chased and then it was made to stop at Chughal Pura. The driver of the car disclosed his name Muhammad Rehman while the person sitting on front seat disclosed his name as Imtiaz. During the course of search of the vehicle plastic bag containing 19 packets each weighing 1 kg total 19 kgs charas garda was recovered from its boot (diggi). Both the accused were arrested, the contraband was seized and taken into possession.

3.It was contended that during the entire investigation/interrogation the prosecution has not been able to reasonably connect the petitioner like the co-accused Muhammad Rehman with the commission of the crime. He had no concern with the charas. He was sitting in the vehicle as passenger. He next contended that F.I.R. showed that 19 kgs charas garda was allegedly recovered from the car which was not charas is entirely and was always subject to baking and chemical process and after that process the quantity was always substantially reduced. That investigation in the case is complete and he is no more required to investigation agency. That the case of accused is one of further inquiry.

4.Learned counsel for the State vehemently opposed the grant of bail on ground that huge quantity of narcotics was recovered from the car in which the petitioner was found seated therefore there is strong presumption against him that he was in league with the co-accused. That the FSL report to this effect also supports the prosecution version qua recovery of the narcotics and that the arguments advanced by learned counsel for the petitioner in support of bail can be properly addressed and thrashed out at the trial stage.

5.I have gone through the record carefully and considered the submission made by learned counsel for the parties.

6.I have perused the case-law produced in support of bail application. In an identical case, the Hon'ble Chief Justice of this Court in Bail Petition No.1091 of 2011, decided on 1-8-2011 has held:--

"Except the fact that the petitioner was found as inmate of the Truck, there is no other evidence of any nature to reasonably connect him as an associate of the co-accused. Islam Hussain, driver of the Truck who was in active control and domain of the same who could be tagged with the requisite knowledge and when his employers, the owners are absconding in the case and because during personal search no amount of money was recovered from the accused- petitioner to slightly suggest that he was paid for giving company to the driver, the principal accused and when during intensive interrogation the petitioner has not divulged nor have led the Police party to any new discovery or recovery then, in the given circumstances his case appears to be distinguishable from the rest of co-accused because on simple presumption, how high so ever it might be liberty of a person cannot be curtailed. The reasonability of the grounds, to show connection of an accused with the commission of the crime, is to be tested on the total sum of materials collected and when that exercise is pressed into service, the case of the petitioner becomes one of further inquiry and distinguishable from the co-accused".

7.In the present case petitioner along with his co-accused Muhammad Rehman has been charged for carrying 19 kgs charas. Co-accused Muhammad Rehman, also charged in the instant case, was driving the vehicle in question wherefrom contraband charas was recovered. Petitioner is neither driver nor owner of the vehicle but alleged to be a mere passenger and above all nothing has been recovered from his immediate possession. Furthermore, at present there is neither any evidence showing that petitioner was in conscious knowledge of the presence of the contraband in the boot (diggi) of the vehicle nor any thing on record to show previous conviction or involvement of accused in such like case. As such the petitioner has made out his case for the purpose of bail.

8.For the reason discussing above, this petition is allowed and it is directed that petitioner be released on bail provided, he furnishes bail bond in the sum of Rs.300,000 with two sureties each in the like amount to the satisfaction of the Alaqa/Judicial Magistrate, who is to ensure that the sureties are local, reliable and men of means.

MWA/4/P Bail granted.