Muhammad Afzal vs State

2012 M L D 220 [Peshawar]

Before Waqar Ahmad Seth, J

MUHAMMAD AFZAL and 2 others---Petitioners

Versus

THE STATE---Respondent

Criminal Miscellaneous Bail Application No.1746 of 2011, decided on 25th November, 2011.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possession and trafficking of narcotics---Bail, grant of---Further inquiry---Border line case---High Court, in similar circumstances, had granted bail to accused, where the contraband was four kgs.--- Whether accused were in conscious knowledge of the recovered stuff lying in the vehicle or not, was a question to be determined after recording of evidence, but accused could not be kept behind the bars for indefinite period and that too when they had no previous history of involvement in such like cases---Three accused were involved and was yet to be ascertained the connection and extent of the contraband with the accused persons---Offence for which accused were charged, though, prima facie, fell within the prohibitory clause of S.497, Cr.P.C., but under the law, the punishment likely to be awarded to accused after the trial as per recovery of alleged contraband, would not fall within the said prohibitory clause---Whether accused could be awarded sentence attracting prohibitory clause, in view of the quantity of substance recovered, would be a question which required further inquiry---Alleged recovered "Garda charas" was not narcotic in its entirety and the Chemical Examiner had not mentioned percentage of narcotic substance, therein, which had made the case of accused that of further inquiry---"Garda" was dust and its quantity allegedly recovered from accused would not make them traffickers/peddlers of contraband---Border line case was made out, which must go in favour of accused---Accused were admitted to bail, in circumstances.

Mohd Ajmal Latif and Farhana Marwat for Petitioner

Mehwish Bakhtiar for the State

Date of hearing: 25th November, 2011.

JUDGMENT

WAQAR AHMAD SETH, J.---Petitioners seek bail in case F.I.R. No.636 dated 19-10-2011 registered for offence under section 9 © CNSA at Police Station Michni Gate, Peshawar.

2.The contents of F.I.R. reveal that there was information to the local police of Police Station Michni Gate regarding smuggling of narcotics from tribal area to Punjab, hence believing the same to be true, they laid nakabandi at Babu Garhi Chowk when in the meantime motor car bearing No.287/LEB appeared on the scene, wherein, the petitioners were sitting. On search of the motor car, from its secret cavities chars and opium, as detailed in the first report, have been recovered, hence the case was registered against them.

3.Learned counsel for petitioners contended that the petitioners are innocent and falsely implicated in the case; that the recoveries have not been effected from personal or constructive possession of the petitioners; that this court in Criminal Miscellaneous 1649 of 2006 decided on 8-12-2006 has granted bail to the accused therein, therefore, case of the petitioners being on the same footing also merits acceptance.

4.Learned State counsel contended that the petitioners have been directly nominated in the F.I.R.; that the FSL report is in the positive, therefore, on the available record the petitioners are not entitled to bail.

Arguments heard. Record perused.

5.The record reveals that in similar circumstances this court had granted bail to accused in Criminal Miscellaneous 1649 of 2006 decided on 8-12-2006 where the contraband recovered was 4 kgs. Whether the petitioners were in conscious knowledge of the recovered stuff lying in the vehicle or not is a question to be determined after recording of evidence but at present the petitioners cannot be kept behind the bars for indefinite period and that too when they have no previous history of involvement in such like cases. Since there are three accused involved and it is yet to be ascertained the connection of the contraband with the accused and to what extent.

6.Though the offence for which the petitioners are charged prima facie falls within the prohibitory clause of section 497, Cr.P.C. but under the law the punishment likely to be awarded to the accused after the trial as per recovery of the alleged contraband would not fall within the prohibitory clause. It is on the analogy that the quantum of sentence must commensurate with the quantum of recovery. So, in view of the quantity of substance recovered, can the petitioners be awarded sentence attracting prohibitory clause, would be a question requires further inquiry.

7.The alleged recovered "Garda chars" was not narcotic in its entirety and the chemical examiner had not mentioned percentage of narcotic substance, therein, which had made the case of accused that of further inquiry. "Garda" was dust and its quantity allegedly recovered from accused would not make them traffickers/peddlers of contraband, hence a border line case is made out that must go in favour of the accused, thus, in view of the facts and circumstances mentioned above, this petition is allowed and the petitioners are granted bail in the sum of Rs.300,000 each with two sureties each in the like amount to the satisfaction of learned trial court, who shall ensure that the sureties are local and men of means.

These are the detailed reasons for the short order of even date.

H.B.T./378/P Bail granted.