MUHAMMAD FAISAL Versus State

ORDER

ASIF SAEED KHAN KHOSA, J .---Through this consolidated order we propose to decide Criminal Miscellaneous No.7258-B of 2005 filed by Muhammad Faisal petitioner and Criminal Miscellaneous No.7732-B of 2005 preferred by Muhammad Akhtar petitioner together as both these petitioners have sought post-arrest bail in the same criminal case, i.e. case F.I.R. No.202 registered at Police Station Garh, District Faisalabad on 24-6-2005 in respect of an offence under section 9(c) of the Control of Narcotic Substances Act, 1997.

2. After hearing the learned counsel for the parties and going through the record we have straightaway noticed that as far as Muhammad Faisal petitioner is concerned nothing had been recovered from his physical possession or at his instance. The said petitioner was not sitting on the driving seat of the relevant vehicle and the narcotic substance was recovered from the door towards the driving seat and at the instance of the driver. In these circumstances the question regarding complicity of this petitioner with his co-accused and conscious possession of the narcotic substance on the part of this petitioner requires evidence which shall be led before the learned trial Court at the time of the trial. The investigation of this case has been already finalized. This petitioner has no antecedents or credentials of a peddler of narcotics to his discredit as he does not stand implicated in any other case of similar nature. It may not be out of place to mention here that the statement of Muhammad Akhtar co-accused recorded by the police officer after his arrest was to the effect that Muhammad Faisal petitioner was an innocent traveller in the said co- accused's taxicab. Although an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 entails a punishment of death and, thus, by virtue of the provisions of section 51(1) of the Control of Narcotic Substances Act, 1997 bail cannot be granted in such a case yet in the cases of Gul Zaman v. The State (1999 SCMR 1271) and The State through Deputy Director Anti-Narcotics Force, Karachi v. Syed Abdul Qayyum (2001 SCMR 14) it had been held by the Honourable Supreme Court of Pakistan that in an appropriate case which is found to be fit for admission of an accused person to bail the accused person may be admitted to bail by this Court by invoking inherent jurisdiction of this Court under section 561-A, Cr.P.C. We have found this case against Muhammad Faisal petitioner to be one such case where he should be extended this concession. Criminal Miscellaneous No.7258-B of 2005 is therefore, allowed and Muhammad Faisal petitioner is admitted to bail subject to furnishing bail bond in the sum of Rs.50,000 (Rupees fifty thousand only) with two sureties each in the like amount to the satisfaction of the learned trial Court.

3. As regards Muhammad Akhtar petitioner in Criminal Miscellaneous No.7732-B of 2005 we have noticed that this petitioner was sitting on the driving seat of the relevant vehicle and he had himself got opium recovered from a cavity on the door of that vehicle towards the driver's side. It had been held by the Honourable Supreme Court of Pakistan in the case of Nadir Khan and another v. The State (1988 SCMR 1899) that a driver of a vehicle is to be saddled with the responsibility of conscious possession of narcotic substance found in the vehicle being driven by him. The quantity of narcotic substance recovered at instance of this petitioner was huge and the report of the Chemical Examiner regarding a sample of the recovered substance has already been received in the positive. After completion of the investigation a challan has already been submitted against the petitioner. An offence under section 9(c) of the Control of Narcotic Substance Act, 1997 entails a punishment of death and by virtue of the provisions of section 51(1) of the Control of Narcotic Substances Act, 1997 there is a prohibition against grant of bail in such cases. No exceptional or extraordinary circumstances has been found by us to exist in this case so as to admit Muhammad Akhtar petitioner to bail and, therefore, Criminal Miscellaneous No.7732-B of 2005 is hereby dismissed.

H.B.T./M-405/L Order accordingly.