Mst. NAZO vs STATE
This is a criminal petition filed by the accused Mst. Nazo seeking post-arrest bail in case FIR No. 1493 dated 27.12.2012 registered under Section 9(c) of the Control of Narcotic Substances Act, 1997, after her bail application was dismissed by the Special Court, Peshawar. The core legal question was whether the petitioner was entitled to the concession of bail on the grounds of non-association of independent witnesses, release of a co-accused, and her status as a woman, mother of a suckling baby, and pregnant woman, despite the recovery of five kilograms of charas from her personal search. The Peshawar High Court held that the petitioner was prima facie connected with the heinous offence of narcotics smuggling, noting that organized syndicates frequently employ women and youngsters to evade strict liability, and dismissed the bail petition while directing the trial court to conclude the trial expeditiously. The key principle laid down is that the mere ground of womanhood or personal circumstances like pregnancy and suckling infants does not automatically warrant bail when a heavy quantity of narcotics is recovered and the accused is prima facie connected to the crime.
- Whether an accused found in possession of a prohibitory quantity of narcotics is entitled to post-arrest bail merely on the ground of being a woman or pregnant?
- Does the failure to associate private independent witnesses at a highway check post vitiate the recovery of narcotics at the bail stage?
- Whether parity can be claimed with a co-accused whose role and case are distinguishable from the petitioner?
- Section 9(c), Control of Narcotic Substances Act 1997
Being unsuccessful in getting bail from the Court of learned Judge Special Court, Peshawar vide order dated 02.01.2013, the accused/petitioner Mst. Nazo has come up to this Court for the same relief in case FIR No, 1493 dated 27.12.2012 registered under Section 9(c) of the Control of Narcotics Substances Act at Police Station Hayatabad, Peshawar.
2. The allegations as contained in the FIR lodged on the report of Namdar Khan SI, Police Station Hayatabad, Peshawar are that on 27.12.2012 at 1630 hours, the accused/petitioner while traveling in a Motorcar No, 5090/LRR was found in possession of five kilograms of charas tied with the string of her trouser.
3. Learned counsel for the petitioner contended that the accused/petitioner is innocent and has been falsely charged; that the occurrence is alleged to have taken place at a busy place but the local police failed to associate any independent witness to the search and recovery proceedings, that co-accused of the petitioner has already been released on bail and that the accused/petitioner is not only a mother of a suckling baby, but also pregnant of four months and thus she is entitled to the concession of bail.
4. Conversely, the learned State counsel while opposing the bail petition tooth and nail supported the impugned order on the grounds as enumerated therein.
5. Arguments heard and record perused.
6. As per the FIR,' on 27.12.2012, Namdar Khan SI alongwith Zar Wali Khan ASI, Zakir Khan No, 1822 had laid `Nakabandi' at Karkhano Check post when at 1630 hours, a Motorcar No, 5090/LRR wherein two women were sitting was stopped on suspicion. Through lady constable Rifat, they were alighted from the motorcar and searched. On the personal search of the accused/petitioner, five packets of charas containing ,1 kilogram charas each tied with the string of her trouser were recovered which on weighing came to be five kilograms. The other woman disclosed her name as Mst. Bakht Zari wife of Usman Jan. The contraband charas was taken into possession vide recovery memo witnessed by Zarwali Khan, ASI, Zakir Khan No, 1822 and Rifat No, 5707: The samples taken from the charas were sent to F.S.L, the report of which is in positive. At present, nothing is available on the record to show that the witnesses had any mala fide or ulterior motive to falsely implicate the petitioner. The case of the accused/petitioner is distinguishable from her co-accused who has been released on bail. The argument of the learned counsel for the petitioner that the accused/petitioner has a suckling baby and is also pregnant of four months is not convincing. Had the petitioner been concerned about her suckling baby, she would not have resorted to indulge in such activity which has afflicted our whole society and especially the younger generation. Off late, the mafia engaged in narco-business has devised new modes and means of smuggling by employing ladies and youngsters in the hope that even if caught red handed, they may be extended the concession of bail by the Courts on the ground of womanhood or juvenility, as the case may be. Such conduct amounts to taking liberty with the law of the land.
7. Taking a tentative assessm ent of the available record, the accused/petitioner is prima facie connected with the commission of offence and is thus not entitled to the concession of bail.
However, as the challan in the case is complete, therefore, the prosecution is directed to submit the same within a fortnight, whereafter the learned trial Judge should decide the case within two months.
8. For the reasons mentioned above, the instant bail petition being bereft of any merit is hereby dismissed.
9. Any observations made in the order being tentative in nature should in no way prejudice the proceedings before the learned trial Court.