MUHAMMAD ULLAH vs THE STATE
This petition for leave to appeal challenged the Peshawar High Court's dismissal of a bail application in a narcotics case. The petitioner, a bus driver, was arrested after nine kilograms of opium were recovered from a cabin on the roof of his bus. The petitioner argued that the contraband was not in his direct possession, that he lacked knowledge of its presence, and that the absence of independent witnesses made his involvement a matter of suspicion. Conversely, the prosecution contended that the cabin was under the petitioner's exclusive control, implying knowledge. The Supreme Court observed that the recovery was not from the petitioner's direct person and that determining whether the roof cabin was for the driver's exclusive use or accessible to passengers involved a disputed factual controversy. Holding that such factual issues cannot be resolved during bail proceedings, the Court determined the case fell within the scope of further inquiry. Consequently, the petition was converted into an appeal, and the petitioner was granted bail, establishing that disputed factual questions regarding possession and knowledge warrant further inquiry rather than pre-trial detention.
- Does the recovery of narcotics from a bus cabin, where the driver claims ignorance, constitute a case of further inquiry for the purpose of bail?
- Can a court resolve disputed factual questions regarding the exclusive use of a vehicle's cabin during bail proceedings?
- Is a driver entitled to bail when contraband is recovered from a vehicle area not in his direct physical possession?
ORDER
' ABDUL HAMEED DOGAR, C.J.--- This petition for leave to appeal is filed against judgment dated 22- 9-2008 passed by learned Judge in Chambers of Peshawar High Court, Peshawar whereby Criminal Miscellaneous.No,119 of 2008 filed by petitioner was dismissed and he was declined concession of bail.
2. Briefly stated facts are that on spy information that narcotics is being smuggled in Bus No,DR- 9711 from Mardan to Karachi complainant Rahat Ali Shah, S.H.O. Police Station ANF, D.I. Khan blocked Dera-Bannu Road near CRBC. When the above mentioned bus reached there it was stopped and from its roof, beneath the bed in the driver's cabin a red coloured plastic bag was recovered in which five plastic envelopes wrapped in yellow colour solution tape containing opium weighing nine kilograms were found. Ten grams from each packet were separated for chemical analysis while the remaining were sealed. On inquiry the driver disclosed his name as Muhammadullah while the person sitting rears him as Ehsanullah and the person sitting on the cleaner's seat as Adnan. After usual investigation all the above named three were arrested and sent up to face trial.
3. Feeling aggrieved all the accused filed application for bail before learned Peshawar High Court, D.I. Khan Bench which was allowed to the extent of co-accused Adnan and Ihsanullah on the ground of being juvenile whereas application for petitioner was dismissed as stated above.
4. It is vehemently contended by learned counsel for the petitioner that petitioner was driver of the bus and the contrabands were not recovered directly from his possession rather it was recovered from the cabin made on the roof. According to him, though there were so many passengers in the bus but none was cited as witness. He further contended that bus was coming from Mardan whereas petitioner boarded in it from Nowshera and occupied driving seat and had not knowledge about the contrabands lying in the cabin. He contended that petitioner has been involved in this case only on suspicions and surmises which makes it a case of further inquiry.
5. On the other hand Sh. Riazul Haq, learned Special Prosecutor ANF supported impugned judgment and contended that the cabin from where the contrabands were recovered was in the exclusive use of petitioner as such it cannot be held that he has no knowledge about it.
6. We have considered the arguments of learned counsel for the parties and have gone through the material produced on record. Admittedly the contrabands were not recovered directly from the possession of the petitioner rather it was recovered from the cabin made on the roof. The question whether the cabin on the roof of the bus was in the exclusive use of driver or for the passengers cannot be decided here as it is a factual controversy which cannot be resolved in a bail petition.
Therefore, we are of considered view that case of the petitioner is of further inquiry. Accordingly, this petition is converted into appeal and is allowed.
7. These are the reasons of our short order of even date.
Cited by 6 cases
- Hamdullah vs The State 2022 MLD 998
- AFZAL AHMED Versus State 2018 PCrLJN 75
- SABAR SHAH Versus State 2017 PCrLJN 99
- MOHAN LAL and another vs The STATE 2016 YLR 1354
- UMAR DARAZ Versus State 2011 PCrLJ 559
- HAFEEZURREHMAN TAIHR vs THE STATE through Special Prosecutor, A.N.F. 2011 MLD 110