NAZIR KHAN vs STATE
This matter arises from a criminal petition filed by Nazir Khan seeking post-arrest bail in case FIR No. 166 registered under Section 9-C of the Control of Narcotic Substances Act, Police Station Jarma, District Kohat, involving the alleged recovery of narcotics. The core legal question concerns whether contradictions between the description of the recovered contraband in the FIR and the Forensic Science Laboratory (FSL) report, alongside the nature of the substance and quantum of sentence, make the case one of further inquiry under Section 497 of the Code of Criminal Procedure 1898. The Peshawar High Court held that discrepancies regarding the shape of the contraband, the requirement of baking and chemical processes for chars garda, and the non-imposition of the maximum sentence warranted the grant of bail. The key principle laid down is that contradictions between recovery memos and FSL reports regarding the nature of narcotics, coupled with the completion of investigation and submission of challan, establish sufficient grounds for further inquiry, entitling the accused to post-arrest bail.
- Whether contradictions between the description of contraband in the FIR and the FSL report make a case one of further inquiry for the purpose of bail?
- Does the recovery of chars garda instead of chars pukhta affect the quantum of sentence and entitle the accused to bail?
- Is an accused entitled to post-arrest bail when the investigation is complete, challan has been submitted, and the accused is not a previous convict?
- Section 9-C, Control of Narcotic Substances Act 1997
- Section 497, Code of Criminal Procedure 1898
' Petitioner Nazir Khan, seeks post arrest bail in case FIR No. 166 dated 12.05.2015 registered u/S. 9-C CNSA, Police Station Jarma, District, Kohat mainly on the ground that in the FIR 04 K.G chars Garda is mentioned while in the FSL report "brown solid" is given which shows the case of petitioner is one of further enquiry, that it will be determined during trial that whether the report of FSL is with regard to the contraband allegedly recovered from the petitioner or not. It was further contended that maximum sentence for the recovered' contraband is not of capital punishment. Lastly it was contended that the petition is neither previous convict nor involved in such like offence and this Court in similar cases has consistently allowed bail to accused; therefore, the petitioner is entitled to bail.
2. Conversely the learned counsel appearing on behalf of the State contended that huge quantity of narcotics has been recovered from the possession of the petitioner. The offence also falls within the ambit of prohibitory clause of Sectiun 497, Cr.P.C. It was further contended that the offence is heinous in nature and also affects the society at large therefore, the petitioner, is not entitled to the concession of bail.
3. Arguments heard and with the valuable assistance of learned counsel for the parties record perused.
4. From the perusal of record, there is contradiction in respect of shape of the contraband that whether Chars garda was recovered or chars pukhta as in murasila and recovery memo. Chars garda is mentioned, while in FSL report chars Pukhta is given which lead the case of petitioner to one of further inquiry. Moreover, if during trial it is proved that chars Garda was recovered then as held by Apex Court it is not chars in its entirely and is always Subject to baking and Chemical process and quantity has to be reduced. It is settled law that quantum, of sentence has to commensurate with the quantum of substance recovered; I doubt that the petitioner can be awarded maximum sentence provided by statute. The petitioner has joined investigation and now the .SHO concerned has submitted complete challan in this case, hence he is no more required to the Investigating Agency. He is also neither previous convict nor involved in such like offences.
5. In view of what has been discussed above, the instant petition is allowed arid the petitioner is granted bail provided be furnishes bail bonds to the tune of Rs. 5,00,000/- (Five lac) with two sureties each in the like amount to the satisfaction of Judicial Megistrate.
6. These are the reasons of my short order of even date.