Malik KHALID HUSSAIN vs THE STATE
The petitioner sought post-arrest bail in a case registered under the Prohibition (Enforcement of Hadd) Order, 1979 and the Control of Narcotic Substances Act, 1997, following the recovery of poppy straw from a rented house. The prosecution alleged the petitioner escaped during a police raid, while the petitioner contended he was not present at the scene and was arrested over a month later without any recovery being made from his person. The owner of the premises filed an affidavit denying that the house was rented to the petitioner or that any recovery occurred there. The Court observed that the petitioner was not apprehended at the spot and that the investigation failed to establish a nexus between the petitioner and the premises in question. Finding the case for bail to be made out due to the delay in arrest and lack of incriminating recovery from the petitioner, the Court admitted the petitioner to bail, emphasizing that the circumstances warranted relief pending trial.
- Is the absence of recovery from the person of an accused arrested significantly after the occurrence a valid ground for the grant of bail?
- Does the failure of the prosecution to establish a nexus between the accused and the premises of recovery entitle the accused to bail?
- Articles 3/4, Prohibition (Enforcement of Hadd) Order, 1979
- Section 9(c), Control of Narcotic Substances Act, 1997
ORDER
' The petitioner seeks bail after arrest in case F.I.R. No.1156 of 2003 registered on 26-10-2003 in Police Station Saddar, Faisalabad, under Arts. 3/4 of Prohibition Order, 1979. Subsequently Section 9(c) of Control of Narcotic Substances Act, 1997 appears to having been added.
2. The F.I.R. Was lodged by Muhammad Ali A.S.-I. C.I.A. According to the F.I.R. On receipt of a secret information the complainant A.S.I along with the Police officials named in the F.I.R. Had conducted a raid at the rented house of Malik Khalid, etc. Accused. On receiving the information about the arrival of the Police Malik Khalid and Nawaz alias Achha accused had managed to escape. From the said house two bags of Post Denthal Bhoki (Poppy Straw) were recovered and 250 grams from each of the bag were separated and sealed separately for chemical analysis. Thereafter the case was got registered against the accused as aforesaid.
3. Arguments have been heard and record perused.
4. It has been stated that as a result of the investigation Muhammad Nawaz alias Achha i.e. The co-accused of the petitioner was declared innocent by the Investigating Officer while the petitioner was arrested in this case on 10-12-2003 i.e. About 1/2 month after the occurrence. Admittedly on his arrest nothing was recovered from the petitioner. It appears that the Police did not try to determine in the course of investigation as to whether the house from which the recovery in question had been effected had been actually hired by the petitioner. Muhammad Rafique, the owner of the house, has appeared before this Court today and filed an affidavit to the effect that he had not rented out any house to the petitioner nor any recovery had been effected from the said house. In any way, the mere fact that the petitioner had not been apprehended at the spot and was arrested by the Police subsequently about 1/2 month after the alleged recovery is sufficient to make it a fit case for the grant of bail. Hence, we accept this application and admit the petitioner to bail in the sum of Rs.1,00,000 with one surety in the like amount, to the satisfaction of the learned Trial Court.