Ishaq Ahmad vs The State through ANF Police Station, Airport Road, Gilgit
This criminal petition arises from an order of the Special Judge C.N.S.A. Hunza/Nagar dismissing the petitioner's bail application in a case registered under Section 9(c) of the Control of Narcotic Substances Act for the alleged recovery of 10,000 grams of heroin. The core legal question is whether the petitioner is entitled to post-arrest bail under Section 497(2) of the Code of Criminal Procedure 1898 in view of un-rebutted newspaper reports and transport documents suggesting the recovery was actually made from bags of walnuts booked from Peshawar rather than from the petitioner's direct possession as alleged, making his case one of further inquiry. The Gilgit Baltistan Chief Court allowed the petition and granted post-arrest bail to the petitioner. The key principle laid down is that judicial notice can be taken of uncontroverted facts reported in newspapers, and where serious doubts exist regarding the prosecution's version of recovery and the failure to arrest the main accused, a case for further inquiry under Section 497(2) is made out, entitling the accused to bail.
- Whether un-rebutted news reports published in newspapers can be taken judicial notice of in bail matters?
- Can a petitioner be granted post-arrest bail under Section 497(2) of the Code of Criminal Procedure 1898 when serious doubts are cast on the prosecution's story of recovery?
- Does the failure of the prosecution to arrest the main accused warrant the concession of bail to a co-accused?
- Section 9(c), Control of Narcotic Substances Act
- Section 497(2), Code of Criminal Procedure 1898
MALIK HAQ NAWAZ, J. --- The petitioner was booked under Section 9(c), C.N.S.A. vide F.I.R. No, 7/2016, dated 30.5.2016, registered at police station ANF Gilgit.
2. The story unfolded in the F.I.R. is that ANF officials received any information that one Muhammad Taqi son of Habibullah resident of Nagar and one Haji Abdul Rehman. resident of Mardan. who are notorious international smugglers will try to smuggle the Heroin to China through Sust border. The ANF officials were further informed that one of their agent will come from Morkhoon to Sust and will hand over the Narcotics to any particular customer. The ANF officials constituted a raiding party and they set out at about 15:00 hours from Gilgit to Morkhoon. As reaching Morkhoon they kept a vigilant eye on the suspected persons. At about 15:45, hours a person appeared at the scene of occurrence who was holding a black bag in his hand. He was over powered by the ANF Staff and on search of the bag five packets of heroin were recovered and each packet was containing 2000 grams of heroin and thus the total weight of heroin 10,000 grams was recovered. 10 grams of heroin was separated from each packet for chemical expert opinion and the recovered heroin was sealed in a parcel and recovery memo. was accordingly prepared in the presence of marginal witnesses.
3. The petitioner applied for bail in the Court of Special Judge C.N.S.A Hunza/Nagar, which was turned down vide order dated 15-08-2016. The petitioner being aggrieved from the order of the learned Special Judge CNSA Hunza/Nagar has approached this Court for concession of bail.
4. The learned counsel for the petitioner vehemently contended that the case is false and the real facts of the case have been twisted and a tailored story has been put forth by the ANF officials just to screen off the real culprits and the petitioner has been made a scapegoat just to fill in the blanks. The learned counsel further stated that the heroin was recovered from the bags containing walnuts as evident from the documents placed at page 10 of the file clearly shows that 60 bags of walnuts were booked from goods forwarding agency head office Peshawar, Haji Camp, Street 5, plot No, 56, Peshawar and the news regarding recovery of heroin from the above walnuts bags struck head, line of the various newspapers i,e, Daily Rahber, Daily Mahasib and Daily Ausaf of the following day of the occurrence which fact have not been denied by the respondent. The learned counsel stated that in view of the above unique circumstances the case has become as a case of further inquiry under Section 497(2). Cr.P.C. and the petitioner be released on bail.
5. On the other hand the learned Special Prosecutor of ANF opposed the bail petition with full force and submitted that as per record made available to him by the ANF officials the petitioner/accused is prima facie linked with the offence and a huge quantity of narcotics worth billion of rupees has been recovered from the possession of petitioner/accused. hence he is not entitled for the concession of bail.
6. We heard both the learned counsel of the parties at length and also perused the record of the case minutely. It is not denied by the learned Special Prosecutor of ANF that the news published in above-referred various newspapers still remains un-rebutted. The receipt of goods forwarding agency stationed at Peshawar from where the consignment was booked by one Abdul Rehman also has not been denied by the learned Special Prosecutor ANF.
7. We repeatedly asked the learned Special Prosecutor of ANF about any concrete steps taken for arrest of the main accused but the learned Special Prosecutor ANF was unable to satisfy us regarding the above queries. Now it is a settled proposition of law that judicial notice of a news published in newspapers could be taken if not rebutted by the concerned authorities.
8. We are of the view that a case for grant of bail has been made out, the petitioner is allowed bail subject to furnishing bail bonds in the sum of Rs, 20,00,000/- (twenty lac only) with two sureties each in the like amount to satisfaction of the Trial Court.