Farhad Ali vs The State through A.A.G. Khyber Pakhtunkhwa
This criminal petition, converted into an appeal, arises from an order of the Peshawar High Court refusing post-arrest bail to the petitioner, Farhad Ali, who was implicated in case FIR No.261 under the Khyber Pakhtunkhwa Control of Narcotic Substances Act. The core legal question was whether the petitioner was entitled to bail where no recovery was made from his direct possession or pointation and he appeared to be a juvenile at the time of the incident. The Supreme Court of Pakistan held that the case against the petitioner called for further inquiry under Section 497(2) of the Code of Criminal Procedure, given the absence of recovery and his apparent juvenility, leaving the applicability of relevant statutory provisions to be determined by the trial court after recording evidence. The appeal was accordingly allowed and the petitioner granted bail subject to surety bonds.
- Does a case call for further inquiry under Section 497(2) of the Code of Criminal Procedure 1898 where no recovery is made from the accused?
- Is an accused entitled to bail when his juvenility is apparent and no incriminating material is recovered from his possession or pointation?
- Section 497(2), Code of Criminal Procedure 1898
ORDER
SARDAR TARIQ MASOOD, J.---Petitioner Farhad Ali has impugned the order dated 06.09.2021 whereby bail was refused to him by the learned Peshawar High Court, Peshawar to case FIR No.261 dated 09.08.2021, offence under sections 9-D, 1 1-C, 13, KP CNSA, registered at Police Station Jamrud Khyber .
2. After hearing the learned counsel for the petitioner and learned counsel appearing on behalf of State assisted by the Police Officer present with record, we have observed that according to FIR the factory of ICE (narcotics) was being run by Daulat Abdal Khel. Upon raid on the said factory the petitioner was found present whereas 24 packets of ICE weighing 24000 grains and four packets of chemical weighing 106 kilograms were recovered from the possession of co-accused Mudassir . According to prosecution, presence of prese nt petitioner was shown at the spot but nothing was recovered from him or on his pointation. According to Matric Certificate the petitioner is about 16 years and five months of age at the time of incident and apparently , he is a juvenile. Since as per prosecution's own case, nothing was recovered from the possession or on the pointation of petitioner , therefore, the learned trial Court shall determine whether case of petitioner comes within the mischief of sections 12 and 13 of the Khyber Pakhtunkhwa Act No.XXXI of 2019, of course, after recording evidence. As of now, case against the petitioner calls for further inquiry falling within the ambit of section 497(2), Code of Criminal Procedure.
3. For the foregoing, the instant criminal petition is converted into an appeal and the same is hereby allowed. The appellant-Farhad Ali is allowed bail (in the instant FIR) subject to his furnishing bail bond in the sum of Rs .200,000/- (Rupees two hundred thousand) with two sureties in the like amount to the satisfaction of the learned trial court.
Cited by 1 case
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