KHAN ALAM vs STATE
The petitioner sought post-arrest bail in a case registered under Section 9(c) of the Control of Narcotic Substances Act, 1997, following the alleged recovery of 3 kilograms of charas from a vehicle driven by him. The core legal question was whether the petitioner made out a case for further inquiry under Section 497(2), Code of Criminal Procedure 1898, considering the medico-legal report showing injuries, the absence of the Forensic Science Laboratory report, and the failure of the prosecution to record the statement of the vital witness on whose identification the contraband was allegedly recovered. The Peshawar High Court accepted the bail petition and held that these factors created a serious dent in the prosecution story, bringing the case within the scope of further inquiry. The key principle laid down is that unexplained injuries on the accused coupled with procedural lapses in the prosecution case, such as missing forensic reports and unrecorded witness statements on recovery points, constitute grounds for grant of post-arrest bail in narcotics cases.
- Whether unexplained injuries on the person of an accused at the time of arrest constitute grounds for post-arrest bail?
- Does the absence of a Forensic Science Laboratory report at the bail stage make out a case for further inquiry?
- Whether failure to record the statement of a material witness on whose identification contraband is recovered creates a dent in the prosecution case?
- Section 9(c), Control of Narcotic Substances Act, 1997
- Section 51, Control of Narcotic Substances Act, 1997
- Section 161, Code of Criminal Procedure 1898
1. Petitioner/accused seeks his release on bail, in case FIR No. 1729 dated 15.08.2016, being registered against him by the local police of Police Station, Hayat Abad, Peshawar under Section 9 (c) of the Control of Narcotic Substances Act, 1997.
2. 2.According to the contents of the FIR, during nakabandi, the petitioner, while driving a vehicle Alto motorcar was intercepted and on search of the car, 03-Kgs charas was recovered therefrom concealed beneath the rear seat.
3. 3.Learned counsel for the petitioner contended that the petitioner has been tortured by the local police and to .save the neck from criminal proceedings, involved the accused-petitioner in a fake case. Further stated that so far FSL report has not been placed on record to support the prosecution version.
4. Further contended that the . alleged contraband has been recovered on the instance of an inferior/witness but his statement has not been recorded even under Section 161, Cr.P.C., who was the star witness and in absence of his statement, the fate of the case would be acquittal.
5. 4.Learned AAG present in Court argued that the petitioner has been arrested red handed while transporting huge quantity of contraband from tribal territory (T.T) to the settled area while the punishment provided for the offence was also life imprisonment/death under Section 51 of the Control of Narcotic. Substances Act, 1997, as such not bailable.
6. 5.I have heard the arguments of learned counsel for the parties and gone through the record of the case.
7. 6.The record reveals that on the day of occurrence, the accused was arrested and produced on the next day before the doctor, who was noted to be injured. The person, who has identified not only the motorcar but also on his notation the contraband was recovered there from the vehicle driven by the accused-petitioner, has not been cited as a witness. The FSL report is also not available on record to support the prosecution case. As there is serious allegation of torture at the hands of local police upon the accused-petitioner, in view of the medico legal report available on record and non-recording of the statement of a witness, on whose point lion the contraband was recovered from the vehicle under possession of the accused-petitioner, is a serious dent in the prosecution story which makes out a case of further inquiry against the accused-petitioner. This Court in Cr.Misc/B.A. No. 1003-P/2016 decided on 13.5.2016 and in another case bearing No Cr.Misc./B.A. No. 2050-P/2016 decided on 26.9.2016 has released the accused-petitioner on similar ground.
8. 7.Therefore, this bail petition is accepted and the accused-petitioner is released on bail, provided he furnishes bail bonds in the sum of Rs.2,00,000/- (rupees two lac) with two sureties, each in the like amount to the satisfaction of Maga./ Judicial Magistrate, who shall ensure that the sureties must be local, reliable and men of means.
9. Above are the reasons of my short order of even date announced in open Court.