ASHFAQ AHMAD vs THE STATE

' MUHAMMAD ALAM KHAN, J.---Ashfaq son of Arab Shah r/o Dakhi Mir Abad, Charsadda presently confined at Central Jail, Peshawar has moved this post arrest application, as he has been held up in case F.I.R. No,734 dated 25-11-2007 under section 9 C.N.S.A. Of Police Station, Chamkani Tehsil and District, Peshawar.

2. Briefly narrated the facts of the case are that on 2541-2007 at 1730 hours Rajab Ali, S.H.O., P.S. Chamkani Tehsil and District, Peshawar has received a spy information that through Motor car No,3002-U,Peshawar some contraband Charas are going to be smuggled from Bara a tribal area to Punjab. On this he along with Raees A.S.-I., Muhammad Asif and other police officials laid a picket on G.T. Road near Chamkani. In the meantime a motor car blue in colour bearing No,3002-U Peshawar was coming from Peshawar side which was signaled to stop. The driver tried to flee away which was chased through official mobile squad. However, the driver parked the car aside on the road and ran away. However, along with the driver another person was sitting on the front seat in the motor car, who was arrested and he disclosed his name Ashfaq Ahmad son of Arab Shah resident of Firdos Killi Charsadda. On checking of the motor car from the right and left side of the gates of the car 20 packets of Charas concealed in secret cavities were recovered. On weighment each packet was found to be one kilogram the total quantity thus, came to be 20 kilogram. From each packet five grams was sealed in separate parcels and sent to F.S.L. For chemical analysis and the remaining Charas was sealed in packet No,21, thus, the accused along with Charas and motor car was taken into custody and the Murasila was drafted and sent to the P.S. For registration of the case which was duly incorporated in F.I.R. No,734 dated 25-11-2007 and case was registered under section 9 Control of Narcotic Substances Act, 1997.

3. The petitioner submitted post arrest bail application to the learned Court of Sessions Judge, Peshawar which came for hearing before Mr. Jan Muhammad Khan, learned Additional Sessions Judge I, Peshawar and who after hearing the learned counsel for the parties vide order dated 26- 12-2007 declined the request for bail of the petitioner on two fold grounds firstly that the quantity recovered was 20 Kg. Charas and secondly that the petitioner has made a confessional statement which has been duly recorded by Mr. Abdul Hassan Khan Mohmand, Judicial Magistrate 1st class, Peshawar and thus, found the petitioner prima facie guilty of the offence with which he had been charged, hence, the present petition for post arrest bail.

4. Arab Shah father of the petitioner submitted at the bar that there is no evidence to connect the accused/petitioner with the commission of the offence and the alleged confessional statement obtained by the police was under duress and that too, was an exculpatory confession not binding on the petitioner. Mr. Alamzeb Khan, learned Deputy Advocate-General submitted that the petitioner has been arrested on the spot and from his conscious possession the contraband Charas has been recovered from the secret cavities of the motor car thus, reasonable grounds exist to connect the accused/petitioner with the commission of the offence and as the offence with which the petitioner had been charged attract the embargo contained in section 497, Cr.P.C. And thus he is not entitled to the concession of bail.

5. I have gone through the record of the case and with the assistance of the learned Deputy Advocate-General scanned the data available on the record. Perusal of the record reveals while adverting to the alleged confessional statement made by the petitioner, show that the same was exculpatory in nature and according' to that admission it was admitted by the petitioner that he is a student of 2nd year who was declared as failed candidate in one of the subject and on 22-11- 2007 he had come to Peshawar to meet his maternal uncle and in the meantime the accused Nasir Khan son of Haji Nadir Khan resident of Pandook Koroona Dhaki came and when he asked for a lift, a lift was given to him in the car. He was not in the know of the presence of the contraband Charas in the motor car and on seeing the police party the said Nasir Khan first tried to flee away with the car but seeing no chances of his escape parked the car on the side of the road and fled away.

6. If this confession is taken into consideration in its entirety which is exculpatory in nature, will not tend to connect the accused with the commission of the offence and so far as that Nasir Khan co- accused had run away and the petitioner was sitting in the car, thus, the driver could be presumed to have the conscious knowledge of the contraband lying in the motor car and so far as the conscious possession of the petitioner had A to be thrashed out at the time of trial, thus, making the case one of further enquiry and the prosecution had yet to prove that the present petitioner had in any way links with the absconding co-accused. So much, so, that in the circumstances of the case when the accused/petitioner has annexed with the written arguments the date sheet of the supplementary examination corroborating his version as stated in the alleged confessional statement. The direct conscious possession has to be shown at the time of trial by the prosecution.

Furthermore the direct link of the petitioner with the said crime as well as with the co-accused had also to be proved and established by the prosecution at the time of trial as held in 2005 PCr.LJ 1947 in the case of Akhtar Ali v. The State and in the case of State through Deputy Director Anti-Narcotics Force Karachi v. Syed Abdul Qayum reported in 2001 SCMR page 14. The contention of the learned Deputy Advocate-General that there is an express bar on the release of a person charged under section 9 C.N.S.A. As envisaged by section 51 of the C.N.S.A. Of 1997 is also without any force because under the scheme of this Act the applicability of sections 496/497/498, Cr.P.C. Has not been excluded and the same has not been totally barred as held in the case of Gul Zaman v. The State reported in 1999 SCMR 1271 and this Court in suitable cases on data available on the record, if comes to the conclusion, that there are no reasonable grounds to believe that the accused is prima facie involved will be well within its powers to enlarge the accused on bail.

7. In view of the facts and circumstances of the case narrated above, this bail petition is accepted and accused petitioner is admitted to bail in the sum of Rs,5 lacs with two sureties each in the like amount to the satisfaction of the Judicial/Duty Magistrate. The learned Magistrate will ensure that the sureties are local, reliable and men of means. By a short order I had accepted this bail application and the above are the reasons for the same.