HAKEEM SHAH vs STATE
The matter arises from a post-arrest bail petition filed by the accused Hakeem Shah, who was charged in an FIR under Section 9 of the Control of Narcotic Substances Act, following the recovery of two kilograms of charas. The core legal question is whether the petitioner is entitled to the concession of post-arrest bail in light of the non-availability of the Forensic Science Laboratory report, the absence of public witnesses to the recovery on a highway, and the applicability of the prohibitory clause of Section 497 of the Code of Criminal Procedure. The Peshawar High Court held that where independent public witnesses were not cited despite availability and the FSL report was not yet on record, the case fell within the ambit of further inquiry, taking it outside the prohibitory clause. The court laid down the principle that the absence of the FSL report coupled with procedural lapses in associating public witnesses from a public highway warrants the grant of bail to the accused pending trial.
- Does the non-receipt of a Forensic Science Laboratory report entitle an accused to post-arrest bail?
- Whether the non-association of public witnesses from a highway during the recovery of narcotics brings the case within the scope of further inquiry?
- Does an offence fall outside the prohibitory clause of Section 497 of the Code of Criminal Procedure if the maximum sentence may not be awarded based on available data?
- Section 9, Control of Narcotic Substances Act 1997
- Section 103, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
Hakeem Shah accused/petitioner charged in case FIR No, 115 dated 5/5/2008 registered under Section 9 CNSA in Police Station Paroa, after the rejection of his application of bail by the learned Sessions Judge D.I.Khan vide order 16/5/2008 has moved this Court for the same purpose.
2. Sanaullah Khan SHO of Police Station Paroa alongwith police party was present on the Ramak Check post for checking smugglers when Bus No,072/AJK from Dera side reached there which was stopped and when checked through Manzoor Ahmad IHC No, 512, a person in suspicious condition having a plastic bag of black colour in his lap was deboarded thereform who disclosed his name as Hakeem Shah son of Gulan Shah, caste Bangash, resident of Katgarh Hangu, presently residing in House No,9-215, Sultan Abad Karachi. On checking the bags contained charas weighing two kilograms and thus the accused was apprehended in the present case.
3. Learned counsel for the petitioner vehemently contended that no recovery of the contraband charas has been made from the personal possession of the accused/petitioner; that no specific point/place has been given in the site-plan by the SHO wherefrom the accused/petitioner was allegedly deboarded by the police constable; that the FSL report is not available on file and that the mandatory provisions of Section 103 Cr.P.C. have been violated by the police. In support of his contentions, reliance was placed on the case law reported as Zar Gul Vs. The State (2003 P.Cr.L.J.
1392), Sherin Muhammad Vs. The State (2006 P.Cr.L.J. 726), and Inayatullah Vs. The State (2006 P.Cr.L.J. 840).
4. In reply, learned Deputy Advocate General resisted the bail prayer of the accused/petitioner on the grounds that a huge quantity of contraband charas has been recovered from the direct and conscious possession of the accused/petitioner, that no mala fide on the part of police officials has so far been brought on record and that non-receipt of FSL report alone would not entitled the accused/petitioner to the discretionary relief of bail who is, prima facie, reasonably linked with a heinous offence falling within the prohibitory clause of Section 497 Cr.P.C.
5. I have considered the arguments of the learned counsel for the parties and examined the record thoroughly.
6. The argument of the learned Deputy Advocate General that the offence with which the accused/petitioner is charged is hit by the embargo contained in Section 497 Cr.P.C. is without substance insofar as if the Court on the data available on record comes to the conclusion that in the case maximum sentence could not be awarded, the same would go out of the said embargo laid in Section 497 Cr.P.C. as held in the case of Taj Ali Khan Vs. The State reported in 2004 YLR 439.
7. Further more, without touching deep merits of the case at this stage, lest it may prejudice case of either party at trial, suffice it to say that the occurrence has allegedly taken place on main Highway and despite the presence of passengers including driver and conductor of the bus in question, none was cited as a witness to the recovery of contraband charas, that so far the FSL report has not been made available, that investigation in the case is complete and the accused/petitioner is no more required for the said purpose, therefore, prima facie, the case of the petitioner falls within the ambit of further enquiry, entitling him to the concession of bail.
8. The application is therefore, accepted and the accused/petitioner is admitted to bail subject to his furnishing bail bond in the sum of Rs, 3,00,000/- (Rupees three lacs) with two sureties each in the like amount to the satisfaction of Illaqa/Judicial Magistrate, who shall see that the sureties are local, reliable and men of means.
Above are the reasons for my short order of even date.