ISHAQ ALI SHAH and another vs The STATE
The petitioners, Ishaq Ali Shah and Bilal, sought post-arrest bail in case F.I.R. No. 409 dated 7-7-2014 registered under section 9(c) of the Control of Narcotics Substances Act, 1997, at Police Station Gulabahar, Peshawar, involving the alleged recovery of 20 bottles of local wine and 3 Kgs of charas from a room in a hujra following a police raid. The core legal question was whether the petitioners were entitled to post-arrest bail given that they were not arrested on the spot and no incriminating articles were recovered from their direct possession or pointation. The Peshawar High Court held that since the petitioners were not arrested on the spot, no recovery was made from their personal possession, and the alleged offences did not fall within the prohibitory clause carrying a punishment of 10 years, the case warranted further inquiry. The court laid down the principle that where recovery is not directly connected to the accused from their person on the spot and the offence does not fall within the prohibitory clause of section 497 of the Code of Criminal Procedure, bail should be granted as a matter of rule.
- Whether an accused not arrested on the spot and from whom no direct recovery is made is entitled to post-arrest bail?
- Does an offence under section 9(c) of the Control of Narcotics Substances Act, 1997, fall within the prohibitory clause of section 497 of the Code of Criminal Procedure, 1898, in the absence of a 10-year punishment?
- Can ownership of the place of occurrence be determined at the bail stage without recording evidence?
- Section 9(c), Control of Narcotics Substances Act 1997
- Section 497, Code of Criminal Procedure 1898
' IKRAMULLAH KHAN, J.---Petitioners, Ishaq Ali Shah son of Riaz and Bilal son of Muhammad Ayub, seek their release on bail in case F.I.R. No. 409 dated 7-7-2014 registered under section 9(c), Control of Narcotics Substances Act, 1997 - 3/4, P.O./6, G.O., at Police Station Gulabahar, Peshawar.
2. The allegations against the present petitioners as per contents of F.I.R. Are that, on spy information regarding gambling in the hujra of accused/petitioner Ishaq Ali Shah/place of occurrence, the local police conducted raid, the persons on seeing the police party, fled away from the spot, while the police recovered 20 bottles of local vine, 3 Kgs charas, playing cards as well as Rs.5,000 from a room in the said hujra, hence the present case and F.I.R. Was registered against the accused/petitioners.
3. I heard both the learned counsel for petitioner and law officer for State and have carefully gone through the record.
4. Perusal of record reveals that, admittedly, neither the petitioners were arrested on the spot nor anything incriminating articles were recovered from their possession or their pointation. Whether the place of occurrence as alleged in the F.I.R., belongs to the accused/petitioner Ishaq Ali Shah or otherwise, it would be determined during the trial after recording evidence by the trial Court.
Moreover, none of the offences, with which the accused/petitioners are charged, carries punishment of 10 years, were not hit by the restrictive clause of section 497, Cr.P.C.
5. For the reasons given herein above, this petition for bail is allowed and the petitioners be released on bail provided each of them furnishes bail bonds in the sum of Rs. 50,000 ( Fifty Thousand) with two sureties each in the like amount to the satisfaction of the learned trial Court/Ilaqa Judicial Magistrate, who shall ensure that the sureties are local, reliable and men of means.