Hamza Ali vs The State
This matter concerns a post-arrest bail application filed by the petitioner, Hamza Ali, who was charged under Section 9 (1) 6-C of the Control of Narcotics Substance Act, 1997, following the alleged recovery of 570 grams of heroin. The core legal question was whether the petitioner was entitled to bail despite the recovery allegations. The Islamabad High Court held that the petitioner was entitled to the concession of post-arrest bail. The court reasoned that the prosecution's case was rendered doubtful due to the failure to associate private witnesses from the locality and the absence of video recordings or photographs of the recovery process. Relying on Article 164 of the Qanun-e-Shahadat Order, 1984, the court emphasized that law enforcement agencies must utilize modern devices to ensure evidence reliability and protect against potential police atrocities. The court affirmed the principle that while narcotics control is essential, the rights of the accused must be safeguarded, and the incarceration of an innocent person constitutes an irreparable harm, unlike the granting of interim bail, which remains a reparable judicial act.
- Does the failure to associate private witnesses in a narcotics recovery case make the prosecution's case doubtful for the purpose of bail?
- Is the use of video recording during recovery proceedings a significant factor for the reliability of evidence under Article 164 of the Qanun-e-Shahadat Order, 1984?
- Does the potential for irreparable harm to an innocent person through unjustified incarceration outweigh the state's interest in detention during the pre-trial stage?
- Section 9 (1) 6-C, Control of Narcotics Substance Act, 1997
- Article 164, Qanun-e-Shahadat Order, 1984
ORDER
MUHAMMAD ASIF, J. Through this Criminal Miscellaneous, the petitioner namely Hamza Ali seeks post arrest bail in case FIR No. 412/2025 dated 20.03.2025 offence under Section 9 (1) 6-C of Control of Narcotics Substance Act, 1997 ("CNSA") registered with police station Khanna, Islamabad.
2. According to the allegations outlined in the F.I.R, on 20.03.2025, at about 12:30 am, the police party apprehended the petitioner from the area of Pindoriyan, Islamabad, and "heroin" weighing 570 grams was recovered from his possession.
3. The learned counsel for the petitioner argued that the story narrated in the FIR is false, frivolous, vexatious and baseless; that no private witness of the locality was associated; that there is nothing on record, which prima facie connects the petitioner with the commission of alleged offence; and that the petitioner is behind the bars since his arrest, investigation of the instant case has been completed and petiotner is no more required for further investigation, therefore, he is entitled to the concession of post-arrest bail.
4. Conversely, learned State Counsel contends that the petitioner was arrested on the spot with a considerable quantity of narcotics substance; therefore, he is not entitled to the concession of bail.
5. Heard, record perused.
6. It is well-settled principle that every criminal case is required to be seen in the light of its own peculiar facts and circumstances and while making decision on bail application only a tentative assessm ent of the material collected by the prosecution is permissible and deeper appreciation is not warranted under the law.
7. A bare perusal of the record reveals that the petitioner was arrested by the local police on 20.03.2025 wherein, "heroin" weighing 570 grams was recovered from his possession.
8. The Article 164 of Qanun-e-Shahadat Order, 1984 highlights the importance of modern devices and techniques in the collection of evidence, such as video recordings, should be given due importance in judicial proceedings. This provision emphasizes the need for law enforcing agencies to adopt contemporary methods to ensure the accuracy and reliability of evidence.
9. In the present case, the report of PFSA is not available on record, neither any video recording or photographs of the alleged recovery have been made by the police nor any private witness from the locality was associated to prove the alleged recovery from the possession of the petitioner, which makes the case of prosecution doubtful. The use of modern devices during recoveries is not merely a procedural formality but a crucial safeguard to protect innocent persons from potential police atrocities. It provides an objective and unbiased account of the recovery process, reducing the risk of false implications and ensuring that the rights of the accused are protected. In the cases of stringent punishments, the prosecution must present clear, cogent and reliable evidence to prove the accused's guilt beyond a reasonable doubt. In the absence of video evidence and independent witnesses, the prosecution's case relies heavily on the testimony of the police officers involved in the raid, which is insufficient to meet the required standard of proof.
10. I strongly recognize the need to combat the menace of narcotics, however, it must also be ensured that the rights of the accused are protected. The failure to record the recovery on video, non-association of private witnesses and failure to adhere clear judicial directives, tilts the balance in favour of the petitioner.
11. It is also a golden principle of administration of criminal justice that ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run. In this regard reference can be made to the case of Manzoor v. State (PLD 1972 SC 81).
12. In view of the foregoing, instant bail petition is allowed subject to furnishing bail bonds in the sum of Rs. 500,000/- (Rupees five hundred thousand) along with one local surety in the like amount to the satisfaction of the learned Trial Court.
13. Needless to say, the observations made herein above are tentative in nature and shall not influence the Trial Court in any manner, whatsoever.