Mst. SUMERA BIBI and anothers vs STATE
This matter involves a petition for post-arrest bail filed by two female accused, Mst. Sumera and Mst. Rabia, who were charged under the Control of Narcotic Substances Act, 1997, following the alleged recovery of narcotics from their personal possession. The core legal question was whether the petitioners were entitled to bail given the procedural irregularities in the investigation and the humanitarian considerations regarding the accused's minor children. The Peshawar High Court held that the petitioners were entitled to bail. The court reasoned that the prosecution's case suffered from significant evidentiary gaps, including the failure to associate a lady constable during the initial search, the absence of independent witnesses to the recovery, and the failure to place the chemical examiner's report on the judicial file in a timely manner. Furthermore, the court emphasized the humanitarian necessity of releasing a mother incarcerated with her suckling infants. The key principle laid down is that procedural lapses in narcotic recovery, combined with humanitarian grounds involving the welfare of minor children, constitute sufficient grounds for the grant of post-arrest bail.
- Does the failure to associate a lady constable during the search of female suspects in a narcotics case create doubt in the prosecution's case?
- Can the presence of suckling infants in custody with an accused mother be considered a valid ground for the grant of bail?
- Does the failure to place the chemical examiner's report on the judicial file constitute a ground for bail in narcotics cases?
- Section 9(C), Control of Narcotic Substances Act 1997
' Having disallowed, the concession of bail by both the Courts below, petitioners Mst. Sumera and Mat. Rabia, through the instant petition, seek their post arrest bail in FIR No,1 dated 02.01.2015 registered under Section 9(C) Control of Narcotic Substances Act, 1997 at Police Station Ustarzai Kohat.
2. The local police of Police Station Ustarzai, on 2.1.2015 on spy information regarding trafficking narcotic through ladies, made nakabandi at the place of occurrence, at 12.00 Noon, the accused/petitioners were apprehended on suspicion while travelling in a pick-up and on search, from personal possession of accused/petitioner Mst. Sumera 5 packets charas garda while from a purse having in hands of accused/petitioner Mat. Rabia four packets charas garda recovered, which on weighing came out to 6000 & 4800 grams respectively, hence the instant FIR was lodged against the accused/petitioners.
3. Having heard the learned counsel for the parties, perusal of record would reveals that allegedly charas weighing 5000 grams and 4800 grams were recovered from jacket and purse of the accused/petitioners Mst. Sumera and Mst. Rabia respectively and 5/5 grams from each packet were separated for chemical examination. The report of FSL is not available on file, however, the.
Same was produced by the learned AAG in the Court which depicts that the alleged parcels have been received into the Laboratory on 8.1.2015 while the opinion of the chemical examiner were forwarded to the S.P. Investigation Kohat on 16.1.2015 since then its whereabouts are unknown.
Admittedly it has not been placed on the judicial file till date. The mode and manner of sending the samples for chemical analysis and then receipt of chemical examiner report creates serious doubt in the prosecution case.
4. Bare reading of the FIR would divulged that there were prior information to the local police about trafficking of narcotics through female folks and in the circumstances it was incumbent upon the complainant to arrange and associate a lady constable for searching the said ladies but the lady constable was invited to the place of occurrence after apprehending the accused/petitioner. The record, further depict that the petitioner Mst. Rabia is mother of two suckling babies namely Asad Ullah aged about 2/3 years and Mariah aged about 11/2 years who are also behind the bars with their mother. "it this stage the suffering of two suckling babies could not be ignored. Reliance may be placed on a landmark judgment of the august Supreme Court of Pakistan rendered in case titled "Mst. Nusrat us. The State (1996 SCM R 973)". Besides, neither driver nor any other person travelling in the Suzuki pickup wherefrom the accused/petitioners have allegedly been apprehended, has been examined or cited as witness to the recovery, much less, the lady constable has also not been shown as witness of the alleged recovery. Neither the alleged pick up has been taken into custody or its registration has been placed on judicial record.
5. For the reasons given hereinabove, and deriving wisdom from the judgment of august Supreme Court of Pakistan referred to above, this petition for bail is accepted and the accused/petitioners are directed to be release on bail provided each of them furnish bail bonds in the bum of Rs, 2,00,000/- (Rupees Two Lac) with two sureties each in the like amount to the satisfaction of trial Court/Illaqa Judicial Magistrate, who shall see that the sureties arc local, reliable and men of means.