Nasir Nageen Versus State

Order

Ali Baig, C.J .--- Through this single judgment we intend to dispose of the above captioned similar nature criminal miscellaneous petitions as the subject matter of both the criminal miscellaneous petitions are similar and identical. Common question of law and facts are also involved in both petitions.

The brief facts of the case as narrated in the FIR No. 01/2025 are that on 20.02.2025 during patrolling at Bab-e-Gilgit on seeing police of ANF, the present petitioner/accused accelerated his car and harmed the other vehicles. After that the petitioner/accused and his co-accused left the said car. People of the said vicinity apprehended the petitioner/accused and co-accused and handed over them to police. During search the police recovered 1000 grams contraband charas from the hidden cavities of the vehicle. Resultantly the above mentioned FIR was registered against the petitioner/accused and his co-accused.

The brief facts of the case as narrated in the FIR No. 64/2025 are that on 14.04.2025 on spy information the local police of P.S City Gilgit recovered 510 gram of contraband Charas from immediate possession of petitioner/accused namely Amjad Hussain near Hospital Road Gilgit. Resultantly the above mentioned FIR was registered against the petitioner/accused.

1.After registration of the above referred FIR the concerned IO started investigation of the case and after completion of usual investigation got committed the accused/petitioner to judicial custody at Gilgit. The present petitioner had filed an application under section 497 Cr.P.C before the learned trial Court/Special Judge CNSA for grant of post arrest bail. The learned trial court/Special Judge CNSA after hearing arguments on behalf of the parties has dismissed the bail applications filed by the above named petitioners/accused, vide order dated 19.03.2025 passed in B.A No. 140/2025 and order dated 19.05.2025 passed in B.A No. 190/2025.

2.Feeling aggrieved and dissatisfied with the impugned orders passed by the learned trial Court, the above named petitioners/accused have filed the above titled bail petitions before this Court seeking their enlargement on bail.

3.The learned counsel for the petitioners/accused submitted that the police have lodged the above mentioned FIRs against an innocent persons who have no previous criminal record as such petitioners/ accused have falsely been implicated in the instant case by the police. The learned counsel for the petitioners further submitted that the alleged recovery has been effected on a busy road but there is no private witness of the occurrence which makes the case of prosecution doubtful and calls further inquiry. The learned counsel for the petitioners/ accused further submitted that prosecution has failed to submit challan of the case before the trial Court within the mandatory period of 14 days as required under section 173 Cr.P.C. The learned counsel for the petitioners further argued that the offences as reflected in the FIR does not fall within the ambit of prohibitory clause of section 497 Cr.P.C. The learned counsel for the petitioners/ accused lastly submitted that it is a border line case, therefore, the accused/petitioners are entitled for concession of bail. The learned counsel for the petitioner/accused in Cr. Misc. No. 203/2025 has relied upon judgment of superior courts reported as 2025 SCMR 721 and judgment of this Court dated 19.03.2025 passed in Cr. Misc. No. 7/2025 titled "Muhammad Ilyas v. The State" .

4.On the other hand the learned DAG as well as the Special Prosecutor of ANF vehemently opposed the contentions raised by the learned counsel for the petitioners/ accused and submitted that the FIRs have been promptly lodged, the accused /petitioners have directly been nominated in the FIRs and contraband Charas has been recovered from the possession of petitioners / accused in presence of impartial witnesses. The learned DAG and the Special Prosecutor further submitted that the petitioners/ accused have been caught red handed during transportation of the charas by the police, hence, they are not entitled for concession of bail. The learned Special Prosecutor further submitted that the offence is heinous one, against the society and falls within the ambit of prohibitory clause of 497 Cr.P.C, therefore, the accused/ petitioners are not entitled for any relief. The learned DAG further submitted that the judgments/orders passed by the learned trial Court is well reasoned and result of correct appreciation of law and material available on record. The learned DAG and the Special Prosecutor lastly submitted that the instant bail petitions may be dismissed to meet the ends of justice.

5.We have heard the learned counsel for the parties at length and also gone through the available record of the case with their able assistance.

6.After amendment in Control of Narcotics Substance Act, 1997 sentence for the offences under section 9 (1) 3(b) and section 9 (1) and 3 C-15 have been provided five to seven years imprisonment, hence, admittedly the aforesaid offences do not fall within the ambit of prohibitory clause of section 497 Cr.P.C, thus bail in the offence which does not fall within the ambit of prohibitory clause of section 497 (1) Cr.P.C is rule and refusal is an exception. Moreover, from the contents of FIRs it reveals that both the alleged occurrences have taken place during day time in a town area/Gilgit City and FIRs have been lodged and the petitioners/accused have been arrested on spy information, but despite prior information the police have failed to associate independent witnesses during the recovery proceedings. Although the provisions of section 103 Cr.P.C excluded by virtue of section 25 of CNSA 1997 but, this waiver cannot be made an excuse in each and every case.

7.In the instant case neither any video in the shape of recording and photographs of alleged recovery has been collected by the police nor any private witness from the locality was associated to prove the alleged recovery from the possession of both the petitioners. The use of modern devices during recoveries is not merely a procedural formality but a crucial safeguard to protect innocent persons from potential atrocities of police. In this connection reference is made to the reported judgment of the Hon'ble Apex Court of Pakistan reported as 2025 SCMR P 721 .

8.Co-accused of the petitioner namely Nasir Nageen has been released on bail by a court of competent jurisdiction, hence, rule of consistency applies to the case of the above named petitioner/accused. Furthermore, FIR No. 01/2025 has been registered on 20-02-2025 but despite lapse of more than 3 months of the registration of FIR police have failed to submit final report of police /challan in the court of competent jurisdiction in violation of mandatory provisions of section 173 Cr.P.C.

9.Provisions of section 173 (1) of Cr.P.C. stipulates that the police investigation shall be completed without unnecessary delay and through the public prosecutor, the investigation report/challan shall be submitted to the court of competent jurisdiction and the proviso thereto mandates that if the investigation is not completed within a period of 14 days from the date of recording of the First Information then within 03 days of the expiration of such period through the public prosecutor an interim/ in-complete report shall be submitted in the court.

10.We are constrained to observe that this unjustified delay in the submissions of challan also vitiates the fundamental rights of the fair trial and due process which the constitution of Islamic Republic of Pakistan guarantees in Article 10-A, hence, the petitioners are entitled for concession of bail.

11.For the foregoing reasons these bail petitions are accepted and both the above named petitioners are admitted to post arrest bail subject to their furnishing of bail bonds in the sum of rupees 200,000/- (two lacs only) with two sureties each in the like amount to the satisfaction of learned trial Court.

12.Needless to mention here that the observations made in this bail order are tentative in nature and shall not influence the trial court during trial. Certified true copy of this order be placed on Cr. Misc No.203/2025. File.

JK/14/GB Petitions allowed.