MUSHTAQ AHMAD Versus State
This matter concerns a post-arrest bail application filed by the petitioner, who was charged under the Control of Narcotic Substances Act, 1997, following the recovery of narcotics from him and his co-accused. The core legal question was whether the petitioner was entitled to bail, particularly in light of the fact that his co-accused, from whom a similar quantity of narcotics was recovered, had already been granted bail by the High Court. The Court held that the principle of consistency applied, as the co-accused had already been released on bail and the investigation into the case was complete, with the challan already submitted to the trial court. Furthermore, the Court noted that the recovered quantity did not fall under the prohibitive clause of the relevant bail provision. Consequently, the Court accepted the bail application, emphasizing that the continued incarceration of the petitioner served no useful purpose for the prosecution, and granted bail subject to the furnishing of bail bonds.
- Does the principle of consistency apply to the grant of bail when a co-accused has already been released?
- Is a petitioner entitled to bail when the investigation is complete and the challan has been submitted to the court?
- Does the recovery of narcotics in quantities not hit by the prohibitive clause of Section 497, Code of Criminal Procedure 1898, entitle an accused to bail?
- Section 9(c), Control of Narcotic Substances Act 1997
- Section 497, Code of Criminal Procedure 1898
MUHAMMAD ALAM KHAN, J .--- Mushtaq Ahmad son of Manzoor Hussain, resident of Ward No.4, Mohallah Rasool Abad, Muzaffar Garh, presently lodged in District Jail, Kohat, accused-petitioner, has moved this bail application, as he is involved in case F.I.R. No.12, dated 1-4-2007, under section 9(c), Control of Narcotic Substances Act, 1997, Police Station Anti-Narcotics Force, Kohat.
2. Briefly narrated facts of the case as disclosed from the F.I.R. are as under:--
"On 1-4-2007, Inspector, Nasir Iqbal, Police Station A.N.F. Kohat, along with police posse was present at Indus Highway near Lachi Grid Station Bus No.P.RT-6649 came from Lachi side, which was stopped and from the lap of person sitting on Seat No.23, a small hand bag containing a pair of used male clothes and the other female clothes were recovered. A shopping bag containing `Garda Charas", one packet of tea (Pathi) were also recovered. The man disclosed his name as Mushtaq Ahmad son of Manzoor Hussain. On Seat No.24, a female was sitting. She was having in her hand a shopping bag containing four packets of "Garda Charas". The same was also recovered. She disclosed her name as Shamshad wife of Mushtaq Ahmad. On personal search of Mushtaq Ahmad, National Identity Card, Rs.580 cash, a chit containing mobile numbers, one mobile sim and a bus ticket were recovered. The female accused herself handed over her N.I.C. and Rs.200. four packets of "Garda Charas" recovered from the possession of Mushtaq Ahmad, on weighing were found 750 grams, 650, grams, 600 grams and 550 grams, total 2 Kgs. and 550 grams. Two packets of "Garda Charas" recovered from possession of female accused were found 650 grams each total 2 Kgs. and 600 grams. Ten grams from each packet were separated for chemical analysis. Both the accused were arrested on the spot."
3. The petitioner submitted application for post-arrest bail before Special Court (C.N.S.) Peshawar Camp Court, Kohat, who after hearing the learned counsel for the parties and taking the data available on the record, into consideration, rejected the bail application of the accused-petitioner, vide order, 5-6-2007. It is pertinent to note that two accused, namely, Mst. Shamshad and the present petitioner were involved in the case and hence by a single order the learned Special Judge declined the prayer of both the accused for post-arrest bail. However, this Court in Criminal Miscellaneous No.959 of 2007, granted post-arrest bail to Mst. Shamshad, co-accused on 22-10-2007, hence Mushtaq Ahmad petitioner has come to this Court with prayer for his release on bail.
4. Learned counsel for the petitioner Mr. Pir Bakhsh Mehtab, Advocate submitted that recovery of 2 Kgs. 600 grams and 2 Kgs. 550 grams "Garda Charas" had allegedly been effected from both the accused, namely, Mst. Shamshad and the present petitioner, respectively. Mst. Shamshad has already been released on bail, so on the principle of consistency the accused-petitioner is also entitled to the concession of bail. It was also submitted that the F.S.L. report has been received and the investigation has been completed in this case, thus, the presence of the accused-petitioner is no longer required in this case. Reliance was placed on Inayatullah v. The State 2006 PCr.LJ 840 and Taj Muhammad v. The State 2006 PCr.LJ 830.
5. On the other hand, Mr. Salahuddin Khan, learned counsel for the State submitted that investigation is complete and challan has been put in Court, so the accused-petitioner is not entitled to the concession of bail.
6. I have gone through the record of the case. The accused-petitioner and Mst. Shamshad were held up by the Anti-Narcotics Force Police at the same time and almost equal quantity of Charas was recovered from them. The co-accused has already been released on bail and the quantity recovered is not hit by the embargo contained in section 497, Cr.P.C. Furthermore, the investigation in the case is complete and the challan has been put in Court, so the presence of the accused-petitioner or keeping him behind the bars will not help the prosecution.
7. In view of the facts and circumstances of the case narrated above, this bail application is accepted and the accused-petitioner Mushtaq Ahmad son of Manzoor Hussain is released on bail provided he furnishes bail bonds in the sum of Rs.2,00,000 (two lacks) with two sureties each in the like amount to the satisfaction of Judicial Illaqa/Duty Magistrate. The sureties must be local, reliable and men of means. This bail application was disposed of by a short order, dated 4-3-2008 and the above are the reasons for the same.
H.B.T./33/P Bail grante