This matter arose from a petition seeking leave to appeal against the order of the Peshawar High Court, which had denied bail to the petitioner in a case registered under Section 9(c) of the Control of Narcotic Substances Act, 1997. The core legal question was whether a passenger in a vehicle, who is disabled, can be refused bail when narcotics are recovered from secret cavities of the car owned and controlled by an absconding principal accused, without preliminary evidence of constructive knowledge. The Supreme Court held that on the available record, there was no clear evidence connecting the petitioner to constructive knowledge of the hidden contraband. Furthermore, the court noted that the petitioner was disabled due to polio, entitling him to concession on humanitarian grounds. The court converted the petition into an appeal, allowed it, set aside the High Court's order, and granted post-arrest bail to the petitioner. The decision establishes that mere presence in a vehicle does not automatically establish constructive possession of hidden narcotics for bail purposes without prima facie evidence of knowledge, especially where the accused is disabled.
' DOST MUHAMMAD KHAN, J.---Petitioner is seeking leave to appeal against the order of the Peshawar High Court, Peshawar dated 02.12.2016 in case FIR No, 857 dated 14.10.2016 registered for crime under section 9(c) of the Control of Narcotic Substances Act, 1997 by the Police Station University Town, Peshawar.
2. According to the prosecution record itself and after making extensive queries from the Investigating Officer present in Court, the only fact on record available is that the petitioner was present with the principal accused in the car, from the secret cavities of which and the CNG tank fixed in the boot of the car, narcotics (charas) weighing 35 kilogram was recovered.
3. It has also come on record that the petitioner is a crippled person as he has suffered from polio virus and his both legs were not normal rather he was disabled.
4. At present there is no clear evidence/material to reasonably establish the connection of the petitioner with the principal accused, who is still at large and who was in exclusive control of the car being its owner and to whom knowledge of the presence of the narcotics can be conveniently attributed.
5. Let the prosecution lead some evidence at the trial to reasonably. Connect the petitioner with the constructive knowledge about the B presence of the narcotics in the car but on the available record it is not a case where bail can be justifiably refused, more particular when the petitioner is a disabled person and somewhat concession can be extended to him on this ground as well.
Accordingly, this petition is converted into appeal and allowed and the impugned order is set aside. The petitioner is granted bail in the sum of Rs,300,000/- with two reliable sureties to the satisfaction of the learned Trial Court.