HAMM SHAH vs STATE
The matter arises from a bail petition filed by the petitioner seeking post-arrest bail in case FIR No. 380 dated 27.03.2015 under Sections 9-C of the Control of Narcotic Substances Act 1997 and Sections 419/420 of the Pakistan Penal Code 1860, registered at Police Station Hayatabad, Peshawar, following the refusal of bail by the Additional Sessions Judge. The core legal question is whether the petitioner is entitled to post-arrest bail when he was not apprehended at the spot, identification in the dark is doubtful, and no recovery was made from his physical possession. The Peshawar High Court held that the case calls for further inquiry under Section 497(2) of the Code of Criminal Procedure 1898 given the lack of direct evidence connecting the petitioner to the crime or the vehicle, the doubtful identification at night, and the absence of previous criminal record. The court laid down the principle that tentative assessment of record pointing towards further inquiry warrants the grant of bail, as unjustified incarceration cannot be undone by subsequent acquittal.
- Whether post-arrest bail can be granted when the accused was not apprehended at the spot and identification in the dark remains doubtful?
- Does the absence of physical recovery and lack of direct evidence connecting the accused to the recovered contraband make the case one of further inquiry?
- Whether continuous incarceration serves any useful purpose when the accused is no longer required for further investigation and has made no confession?
- Section 9-C, Control of Narcotic Substances Act 1997
- Section 419, Pakistan Penal Code 1860
- Section 420, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
' Petitioner Halim Shah son of Sikandar Shah r/o Jamrud seeks his release on bail in case FIR No. 380 dated 27.03.2015 under Sections 9-C (CNSA), 419/420, PPC of Police Station, Hayatabad, Peshawar on refusal from the Court of learned Additional Sessions Judge-II/JSC, Peshawar vide order dated 20.05.2015.
2. Brief but relevant facts of the case as per contents of FIR are that on the basis of spy information that huge quantity of heroin would be smuggled from tribal territory to Punjab through a car bearing Registration No. LEF-34035 having number plate "1-," nakabandi was laid by local Police of Police Station Hayatabad. On seeing Police party accused/petitioner alongwith co-accused taking the benefit of heavy traffic-jam managed to escape from the scene leaving behind captioned vehicle. However petitioner Haleem Shah and co-accused Gulzar had been identified by Police.
During the search of vehicle 4 packets of heroin weighing 4800 grams were recovered from its secret cavities made in the side doors. From the recovered contraband 5/5 grams were separated for chemical analysis and sealed into Parcels Nos. 1 to 4 while remaining 4780 grams was sealed into Parcel No. 5 by affixing monogram "NK". Recovered contraband alongwith vehicle in questions were taken into possession and case vide above-mentioned FIR was registered against absconding culprits. Hence the instant bail petition.
3. Valuable arguments of learned counsel for the parties heard and available record of the case thoroughly considered.
4. Admittedly the occurrence had taken place at night time i.e. At 20:10 hours on 27.03.2015. It is also admitted fact that petitioner was not apprehended red handed at the spot. Nothing was recovered from his physical possession at the spot. There is nothing on record to suggest that petitioner/accused is involved in other cases of the same nature and are history sheeter. It is also a sign of interrogation, that how the Police officials have identified him by name in the darkness and how he managed to run away from the spot hi the presence of heavy contingent of Police officials loaded with weapon and ammunition. Record is also silent in respect of distance between the Police officials and culprit at the time of decamping from spot. Matter is also one of further inquiry that whether petitioner is previously known to the seizing officer and whether the petitioner has any nexus with the car from where contraband was recovered.
5. At present record is silent in respect of the fact that petitioner is the owner of the vehicle No. LEF- 4035 bearing number plate "1-06.". At present there is no direct evidence on record which would connect him with crime. All these facts make the case of petitioner one of further inquiry. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of bail granted to him but no satisfactory reparation can be offered to an innocent person for his unjustified incarceration at any stage of the case, albeit his acquittal in the long run.
Despite remaining in Police custody petitioner has made no confession before the competent Court, connecting him with the commission of offence. He is behind the bar since his arrest and no more required to LO for further investigation; therefore, keeping him behind the bar would, serve no useful purpose.
6. In view of what has been observed above, this petition is allowed and the accused/petitioner is admitted to bail provided lie furnishes bail bonds to the tune of Rs. 3,00,000/- with two sureties each in the like amount to the satisfaction of Judicial Magistrate.