Muhammad Riaz vs State

2013 Y L R 827

[Peshawar]

Before Qaiser Rashid Khan, J

MUHAMMAD RIAZ and another---Petitioners

Versus

The STATE---Respondent

Criminal Miscellaneous Bail Petition No.260 of 2012, decided on 7th November, 2012.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S.9(c)---Possessing and trafficking of narcotics---Bail, grant of---Further inquiry---Alleged contraband material was not recovered from the direct possession of accused person, but same was recovered from secret cavities of the motorcar driven by co-accused---Accused persons, no doubt were apprehended at the spot while seated in the vehicle, but no evidence had been brought forth by the prosecution that they were in conscious knowledge of the narcotics stashed in the secret cavities of the car--- Trial Court at the conclusion of the trial was to adjudge as to whether accused were in any manner linked with the commission of the offence, and that too in a situation when none of the two was either the owner or driver of the vehicle---Case of accused tentatively qualified under subsection (2) of S.497, Cr.P.C. calling for further probe into the matter---Accused were admitted to bail, in circumstances.

Rashidullah Khan Kundi for Petitioners.

Sanaullah Shamim D.A.-G. for the State.

Date of hearing: 7th November, 2012.

JUDGMENT

QAISER RASHID KHAN, J.---Accused/petitioners Muhammad Riaz and Jan Gul seek their release on bail in case F.I.R. No.210 dated 15-10-2012 registered under sections 9(c) of C.N.S.A. at Police Station Mullazai, Tank as they were refused the same relief by the learned Sessions Judge, Tank vide order dated 24-10-2012.

2.Brief facts of prosecution case are that on prior information regarding the smuggling of narcotics, on 15-10-2012 at 7.40 hours the S.H.O., Police Station Mullazai, Tank along with police party made a barricade at Tank-Pezu Road when in the meanwhile a Toyota Motorcar No.2444/MNX arrived which was intercepted. On query, the driver disclosed his name as Abdul Waheed, person sitting on front seat as Muhammad Riaz and the person sitting on the rear seat disclosed his name as Jan Gul who were deboarded and on checking 13000 grams Charas was recovered from secret cavities of the vehicle. The accused were arrested, murasila was drafted and sent to the P.S. on the basis of which the F.I.R. ibid was registered.

3.Learned counsel for the petitioners argued that the accused/ petitioners have been falsely implicated in the case and there is no independent evidence on file against them; that according to prosecution story the accused/petitioners have been shown as passengers while the contraband material has been recovered from the secret cavities of the vehicle and nothing was recovered from their direct possession; that the parcel containing sample was sent to the F.S.L but so far its result has not been received to clarify as to whether the contraband was in fact charas or otherwise which factors make the case of the accused/ petitioners one of further inquiry and they are entitled to the concession of bail.

4.Conversely, the learned D.A.-G. appearing for the State vehemently opposed the bail petition and contended that the accused/petitioners were caught red-handed when they were travelling in the motorcar along with huge quantity of contraband material the punishment of which falls within the prohibitory clause of section 497, Cr.P.C., thus they are not entitled to the concession of bail.

5.Arguments heard and record perused.

6.As per the record, the alleged contraband material was not recovered from the direct possession of the accused/ petitioners rather the same was recovered from secret cavities of the motorcar driven by co-accused Abdul Waheed. No doubt the accused/petitioners were apprehended at the spot while seated in the vehicle, but no evidence has so far been brought forth by the prosecution that they were in conscious knowledge of the narcotics stashed in the secret cavities of the car. It is left to the good judgment of the learned trial Court at the conclusion of the trial to adjudge as to whether the accused/petitioners were in any manner linked with the commission of the offence and that too, in a situation when none of the two is either the owner or driver of the vehicle.

7.Thus taking a tentative assessment of the available record, the case of the accused/petitioners qualifies under subsection (2) of section 497, Cr.P.C. calling for further probe into the matter.

8.For the reasons mentioned above, this petition is accepted and the accused/ petitioners Muhammad Riaz and Jan Gul are admitted to bail on furnishing bail bonds in the sum of Rs.5,00,000 (Rupees five lac) with two sureties each in the like amount to the satisfaction of Illaqa/Duty Judicial Magistrate.

9.Any observations made in the order being tentative in nature should in no way prejudice the proceedings before the learned trial Court.

10.Above are the detail reasons for my short order of even date.

HBT/408/P Bail granted.