Rahat Gul and 2 others vs The State
This criminal petition arises out of an application for post-arrest bail filed by the petitioners Rahat Gul and Niamat Ullah in connection with FIR No. 1414 registered under sections 9-D/11-B of the KP CNSA, 2019 and section 15 of the Arms Ordinance, at Police Station Rehman Baba, Peshawar. The core legal question concerns whether the petitioners are entitled to the concession of post-arrest bail given the varying degrees of incriminating material and recoveries attributed to each. The Peshawar High Court held that petitioner Niamat Ullah was entitled to bail as the premises where the narcotics were recovered did not belong to him and the weapon recovered from his possession did not fall within the prohibitory clause, rendering his case one of further inquiry. Conversely, the bail petition of petitioner Rahat Gul was dismissed on the ground that the contraband was recovered from his owned premises in his presence, supported by statements under section 161 of the Code of Criminal Procedure 1898 and a positive Forensic Science Laboratory report, prima facie connecting him to a heinous offence falling within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898. The key principle laid down is that constructive possession and ownership of premises from where commercial quantities of narcotics are recovered disentitles an accused to bail, whereas absence of ownership of premises and recovery of minor weapons warrants further inquiry.
- Whether an accused from whose immediate possession only a licensed or unlicensed pistol is recovered is entitled to post-arrest bail when the major narcotics recovery is from premises owned by a co-accused?
- Does the recovery of a huge quantity of narcotics from premises owned and controlled by an accused prima facie connect him to an offence falling within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898?
- Can statements recorded under section 161 of the Code of Criminal Procedure 1898 be relied upon for tentative assessment while deciding a post-arrest bail petition?
- Section 9-D, KP CNSA 2019
- Section 11-B, KP CNSA 2019
- Section 15, Arms Ordinance
- Section 161, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
JUDGM ENT
M OHAM M AD IBRAHIM KHAN, J. Through this bail petition, petitioners Rahat Gul and Niamat Ullah seek their release on bail in case FIR No. 1414 dated 15.11.2022 under sections 9-D/11-B, KP CNSA, 2019/15 AA, registered at Police Station Rehman Baba, Peshawar. Earlier their bail petition was dismissed by the order of learned Additional Sessions Judge/C.P.C., Peshawar on 26.11.2022.
2. As Per contents of report, the local police after observing relevant protocol, raided the baitak of petitioner Rahat Gul on spy information qua selling of narcotics; where petitioners along with co- accused Hidayat Ullah were busy in preparation of token/packing of heroin and Ice. On personal search a pistol .30 bore FF1603 along with two spare magazine and 22 live rounds of .30 bore were recovered from possession of petitioner Niamat Ullah. Further search of the baitak, led to the recovery of 28 token of heroin weighing 28 grams, heroin lying in shopping bag weighing 1127 grams, 11 sachet of Ice weighing 11 grams, Ice recovered from shopping bag weighing 175 grams along with small spoon, scissor, stapler, one digital scale and 11 plastic sachet as well as other packing material from the said baitak. The contraband along with above articles were taken into custody, the accused were arrested and a case vide FIR mentioned above was registered against them.
3. Arguments heard and available record gone through.
4. Admittedly, neither the Baitak from which the alleged contraband was recovered, is ownership of petitioner Niamat Ullah nor the alleged contraband except pistol .30 bore and rounds were recovered from his immediate possession; rather the said building was ownership of petitioner Rahat Gul, which makes the case of petitioner Niamat Ullah that of further inquiry. Though a pistol .30 bore along with rounds were recovered from possession of petitioner, for which the offence would not bring his case for refusal of bail. Therefore, this bail petition to the extent of petitioner Niamat Ullah is allowed and he is admitted to bail subject to furnishing bail bonds in the sum of Rs.100,000/- (one lac) with two sureties each in the like amount to the satisfaction of learned Illaqa/Duty Judicial Magistrate concerned; who shall ensure that the sureties are local, reliable and men of means.
5. So fat as case of Petitioner Rahat Gul is concerned, the baitak in question was his ownership and huge quantity of narcotics has been recovered from the same in his presence as well as presence of marginal witnesses; who in their statements under section 161, Cr.P.C. affirm the version of prosecution qua recovery of narcotics from his baitak. The report of FSL also affirms the version of prosecution according to which the recovered contraband were heroin and methamphetamine.
Learned counsel failed to point out any mala fide or ill will on the part of prosecution to the extent of petitioner Rahat Gul, against whom, sufficient material has been collected by prosecution which prima facie connects him with the commission of a heinous offence falling under the prohibitory clause of section 497, Cr.P.C., therefore, this bail petition to the extent of petitioner Rahat Gul is dismissed. However, the prosecution is directed to submit complete challan against accused within a fortnight and thereafter, the learned trial Court is expected to conclude the trial expeditiously.
The ibid observations are the tentative assessment of the material available on the record of the case, which shall not influence the mind of the learned trial Court in any manner at the time of deciding the wheel of fortune of the accused in either his acquittal or conviction within the legal framework.