Muhammad Kamran vs State
This matter concerns a petition for post-arrest bail filed by an accused charged under Section 9-B of the Control of Narcotic Substances Act, 1997, following the alleged recovery of 400 grams of contraband. The core legal question was whether the petitioner was entitled to bail given the circumstances of the recovery and the nature of the offence. The Peshawar High Court held that the petitioner was entitled to bail, primarily because the investigation was complete, the petitioner was a first offender, and there was no independent witness associated with the recovery of the contraband. Furthermore, the Court noted that the offence charged did not fall within the prohibitory limb of Section 497 of the Code of Criminal Procedure, 1898, as the potential punishment is less than ten years. The key principle laid down is that while Section 103 of the Code of Criminal Procedure, 1898, may not strictly apply to narcotics cases due to Section 25 of the Control of Narcotic Substances Act, 1997, the absence of independent witnesses remains a significant factor in assessing the strength of the prosecution's case at the bail stage.
- Does the absence of independent witnesses in a narcotics recovery case entitle an accused to bail?
- Does the non-applicability of the prohibitory limb of Section 497 of the Code of Criminal Procedure 1898 make the grant of bail a rule?
- Is the association of private witnesses required for the recovery of contraband under the Control of Narcotic Substances Act 1997?
- Section 9-B, Control of Narcotic Substances Act 1997
- Section 25, Control of Narcotic Substances Act 1997
- Section 103, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
Through the instant petition, the petitioner (Muhammad Kamran s/o Malik Muhammad Afzal), seeks his post arrest bail in case FIR No. 137/19 dated 15.10.2019 u/S. 9-B CNSA, PS KPRD/ANF (Peshawar). Same relief was, however , declined to him by the learned trial Court vide order dated 06.1 1.2019.
2. Brief facts of the case, as per contents of the FIR, are that the accused-peti tioner was apprehended by the complainant having 400 grams of contrab and in his possession, kept in his Shalwaf badha, while he was traveling in a Toyota Hiace bearing Registration No. LES-13/5013. Accordingly , he was deboarded and arrested and the FIR ibid was lodged against him.
3. The blue streak arguments of the learn ed counsel for the parties heard and record perused with their valuable assistance.
4. Record is silent as to whether any independent witness was associated with the recovery of contraband because, neither any statement of the driver or cleaner or any other passenger was recorded nor their CNICs numbers have been obtained by the JO Association of private witnesses with the recovery and seizure procedure is of much importance. Provisions of Section 103, Cr.P.C. though would not be applicable in view of Section 25 of the CNSA, but each case has to be seen on its own merits, nature and circumstances. In this respect guidance can be safely placed on case law reported in 2018 YLR 1755, 2018 YLR 775 & PLD 2017 SC 433 .
5. Moreso, neither there is anything on record regarding registration of said vehicle nor it has been taken into possession. In absence of any travelling ticket, showing as to from where and to where the accused-petitioner was travelling, is also a question to be resolved after recording of evidence by the learned trial Court. Reference is made to the case law ( 2018 YLR 1674 ).
6. The accused-petitioner is a first offender as there is nothing on record in respect of his previous involvement in such like activities coupled with the fact that except the stance of complainant there is no other incriminating evidence available on file to prima facie connect the accused with the commission of offence. Investigation in the case is complete and the accused-petitioner is no more required to the prosecution, therefore, his further incarceration in jail will serve no useful purpose.
7. Even otherwise, the offence for which the accused-petitioner is charged carries punishment less than ten years which at all does not attract the prohib itory limb of Section 497, Cr.P.C. warranting refusal of bail and in the situation grant of bail is a rule and refusal thereof is an exception.
8. Moreover , it has been held umpteenth time by the august Supreme Court that bail does not mean acquittal of accused but only change of custody from Government agencies to the sureties, who on furnishing bonds take responsibility to produce the accused whenever and wherever required to be produced. Reliance could be placed on case reported in 2008 SCMR 807 "Haji Muhammad Nazir vs. State ".
9. This Court also finds it necessary to mention that all the observations recorded above are tentative assessment just for the disposal of bail petition and not intended to influence the mind of trial Court, which is free to appraise the evidence strictly in accordance with law and merits of the case. Guidance could be sought from case law reported in 1996 SCMR 1845 .
10. For what has been discussed above and on tentative assessment of material available on record, the accused- petitioner has succeeded to make out a case arguable for the grant of bail. Consequently , this petition is allowed and the accused-petitioner , named above, is admitted to bail, provided he furnishes bail bonds in the sum of Rs.
100,000/- (one lac) with two sureties each in the like amount to the satisfaction of Illaqa/Duty Judicial Magistrate.
11. Above are the detailed reasons of short order of even date.