Mazhar Khan vs The State
The petitioner sought post-arrest bail in a criminal case registered under Section 9(c) of the Control of Narcotic Substances Act, 1997, after his earlier bail application was dismissed by the trial court. The prosecution alleged that 1540 grams of heroin was recovered from a co-accused who claimed to be an employee of the petitioner and selling narcotics on his behalf, while the petitioner was not present at the spot. The core legal question was whether the petitioner was entitled to post-arrest bail when the recovery was made from a co-accused and his nomination was based on a co-accused statement. The Islamabad High Court held that since the recovery was not from the petitioner's personal possession, he was not present at the spot, and his implication relied on a co-accused statement, the case fell within the scope of further inquiry under Section 497(2) of the Code of Criminal Procedure, 1898. The court laid down the principle that nomination in an FIR based on a co-accused statement without personal recovery constitutes a case for further inquiry warranting the grant of bail.
- Whether post-arrest bail can be granted when the accused is nominated solely on the statement of a co-accused and no recovery is made from his personal possession?
- Does nomination in multiple FIRs alone constitute sufficient ground for the refusal of bail?
- Does a case fall within the ambit of further inquiry under Section 497(2) of the Code of Criminal Procedure 1898 when the accused was not present at the spot of the alleged narcotics recovery?
- Section 9(c), Control of Narcotic Substances Act, 1997
- Section 497(2), Code of Criminal Procedure 1898
- Section 9(b), Control of Narcotic Substances Act, 1997
ORDER
SAMAN RAFAT IMTIAZ; J: The Petitioner seeks post-arrest bail in FIR No. 462/2021 dated 08.08.2021 for the offence under Section 9(c) of the Control of Narcotic Substances Act, 1997 ("CNSA") registered at Police Station, Tarnol, Islamabad, which was earlier declined by the Learned Sessions Judge/ Judge Special Court(CNS), Islamabad-West vide order dated 28.01.2022.
2. Case of the prosecution as per the FIR is that on 08.08.2021 at about 9.20 a.m., the Complainant along with the police raiding party under the leadership of S.H.O. was present at Village Dore Khan in connection with search operation for narcotics. On spy information they reached at Dera owned by present Petitioner [Mazhar Khan].
When they knocked on the main door, one person, on seeing the police party, fled from the scene who was apprehended with the help of other police officials at some distance. On personal search, heroin powder weighing 1540 grams was recovered from white colored shopping bag which he was holding in his armpit. Out of the recovered narcotics sample of ten gram Heroin was taken for chemical examination, whereas, the remaining narcotic was taken into possession. On inquiry, the above said person identified himself as Muhammad Saeed s/o Karam Khan, resident of Kamrial, Tehsil Pindi Ghep, District Attock. He further disclosed that he is an employee of present Petitioner (Mazher Khan) and sells his heroin, hence this FIR
3. Learned counsel for the Petitioner has contended that the case has been registered against the Petitioner with mala fide intention and ulterior motive; that the Petitioner has no concern whatsoever with the alleged offence; that Petitioner was not present at the spot and implicated on the frivolous statement of the co-accused; that no incriminating material is available on record to connect the Petitioner with the commission of offence, which makes this case that of further inquiry falling within the ambit of sub section (2) of Section 497 Cr.P.C; that the Petitioner is behind the bars since 20.01.2022 therefore, he is no more required for the purpose of further investigation; that there is no apprehension on his part to influence the prosecution witnesses or tamper with the evidence, therefore, as per dicta laid down by the superior Courts he is entitled for bail.
4. Conversely , the learned State Counsel has strongly opposed this bail petition on the ground that huge quantity of narcotics has been recovered and that there is also other sufficient evidence available on record to connect the Petitioner with the commission of this heinous offence. He has submitted that the Petitioner is habitual drug dealer and has a long previous history of involvement in such like cases as he is nomina ted in twenty other FIRs for the same of fence, therefore, is not entitled for any leniency .
5. In rebuttal, the learned counsel for the Petitioner stated that he has already been acquitted in six cases involving offences under Section 9(b) & (c), CNSA.
6. Arguments heard and the available data perused.
7. Prima facie it appears that recovery of the alleged substance was not made from the personal possession of the Petitioner . In fact the Petitioner was not even present on the spot when recovery was made. Petitioner has been nominated in the instant FIR on the statement of the co-accused, which makes the case of the Petitioner that of further inquiry . The Petitioner has no previous conviction whereas nomination in an FIR is no ground for refusal to grant bail.
8. In view of the foregoing, we are inclined to admit the Petitioner to bail subject to furnishing bail bond in the sum of Rs. 200,000/- (Rupees two hundred thousands) along with one local sureties in like amount to the satisfaction of the learned Trial Court. Needless to say that the observations made herein above are tentative in nature and shall not influence the Trial Court in any manner , whatsoever .