GHUNCHA GULL vs THE STATE
This criminal petition arises out of a bail application filed by Ghuncha Gull, who was arrested following the alleged recovery of 10 kilograms of charas from underneath the seat behind the driving seat of a bus he was driving. The core legal question concerns whether the petitioner is entitled to post-arrest bail given the circumstances of the recovery, the non-association of independent witnesses, the non-submission of challan within eleven months, and the prohibitory clause of the relevant narcotics statute. The Lahore High Court held that notwithstanding the statutory bar against bail, the overall facts and circumstances—including the failure to cite passengers as recovery witnesses, the non-arrest of the bus owner despite being named in the F.I.R., and the considerable delay in submitting the challan—made it a fit case for relief. The court laid down the principle that courts retain the discretion to grant bail in narcotics cases despite statutory bars when the facts and circumstances of the case warrant such an exercise.
- Whether bail can be granted in narcotics cases despite the statutory bar contained in section 51 of the Control of Narcotic Substances Act?
- Does the absence of independent recovery witnesses from a public vehicle affect the entitlement of an accused to post-arrest bail?
- Is the prolonged delay in the submission of a challan considered a valid ground for the grant of bail?
ORDER
' KHAWAJA MUHAMMAD SHARIF, J,-According to case of the prosecution, 10 kilograms of charas was recovered underneath the seat, which was behind the seat of the petitioner who was driving the bus at the relevant time.
2. Learned counsel for the petitioner submits that the narcotics was not recovered on the pointation of the , petitioner, it was in fact recovered from underneath the seat behind the driving seat of the petitioner. Farther submits that according to case of the prosecution, the vehicle from which the narcotics was recovered was a public bus coming from Peshawar but none from the persons travelling in the said bus was cited as a recovery witness. Adds that the bus was taken on superdari by the owner of the bus and despite the fact that he was named as accused in the F.I.R, but he was not arrested. Lastly submits that despite lapse of 11 months, challan has not yet been submitted in Court.
3. The learned Additional Prosecutor General opposes the grant of bail and submits that narcotics was recovered from underneath the seat of the petitioner and he was having very much knowledge thereof. Further submits that section 51 of the Act creates a bar to grant of bail in such like cases.
4. We have heard learned counsel for the petitioner and have gone through the Police file. In the instant case, the occurrence had taken place on 19-11-2006 but till today challan has not been submitted in Court. The contention of the learned Additional Prosecutor General is that the charas was recovered underneath the seat of the petitioner who was driving the bus at the time of occurrence. We have carefully gone through the original complaint, F.I.R. As also the recovery memo. In the F.I.R. As also in the recovery memo the word written is {{URDU TEXT}} and not the Much stress was laid by the learned APG that it was {{URDU TEXT}} we may observe that six dots were shown under the word". Six dots cannot be under the word {{URDU TEXT}}. Under the word {{URDU TEXT}} one dot should be above the word and three dots under the word {{URDU TEXT}} passenger bus. None from the passengers were cited as a witness of recovery of narcotics. There is no even mention of passengers in the bus in whole of the F.I.R. In the F.I.R. Sheroze Khan owner of the bus was shown as accused but he was never arrested rather the bus was given to him on superdari. We are conscious of the bar contained in section 51 of the Act, but still the Court can grant bail in such like cases where the Court is of the ;view that it is a fit case for bail after taking into consideration the overall facts and circumstances. Taking all these factors into consideration we are of the view that it is a fit case for the grant of bail. Resultantly this petition is accepted and the petitioner is directed to be released on bail provided he furnishes bail bond in the sum of rupees two lacs with two sureties each in the like amount to the satisfaction of Deputy Registrar (J) of this Court who will take special care with regard to sureties. Heavy amount of surety is being imposed for the reason that the petitioner hails from N.-W.F.P.