SHAH JAHAN vs THE STATE
This criminal bail application arises from Crime No. 03 of 1999 registered at Excise Police Station, Karachi West, under Article 3/4 of the Prohibition (Enforcement of Zard) Order, 1979 (referred to as P.E.H.O.). The core legal question is whether the applicant, who was driving the vehicle in which a co-accused was found carrying contraband Charas, is entitled to post-arrest bail when no recovery was made directly from his possession and the maximum punishment for the offense is five years. The Sindh High Court held that the applicant is entitled to bail as his case falls within the scope of further inquiry, no contraband was recovered from him, he inflicted no injuries, and the offense does not fall within the prohibitory clause of the relevant law. The court laid down the principle that where an accused is merely driving a vehicle, no recovery is effected from his person, and the offense does not attract the prohibitory clause, bail ought to be granted.
- Is an accused entitled to post-arrest bail when no contraband is recovered from his direct possession?
- Does an offense punishable with five years' rigorous imprisonment fall within the prohibitory clause?
- Whether a driver of a vehicle can be admitted to bail when contraband is recovered from a co-accused passenger whose case requires further inquiry?
- Article 3/4, Prohibition (Enforcement of Zard) Order 1979
ORDER
1. ' By this application the applicant Shahjahan, has prayed for grant of bail, in Crime No,03 of 1999, registered at Excise Police Station, Karachi West, for offence under Article 3/4, P.E.H.O. At present the applicant is facing trial before Sessions Judge, Karachi West, who has declined the bail to the applicant, hence this application.
2. ' According to prosecution case the applicant was driving a Suzuki Car and one another person said to be companion was also sitting on the rear seat. The Excise Police intercepted them. The vehicle was stopped, but the man who was sitting with the applicant managed to run away alongwith a cloth bag. The Police Party followed him, and apprehended him, but the said person snatched the gun from the Police Constable and fired at him which hit the Police Constable on the right arm, however the other police personnel caught hold of him, and during scuffle the said person also received injury. He on arrest disclosed his name as Maqsood and on search of the bag which the accused was holding at that time contained Charas.
3. ' The present applicant Shahjahan was also arrested on the presumption that the applicant was also associated with the said Maqsood in trafficking of the Charas. After usual investigation the case was challaned.
4. ' Accused/applicant filed application for bail which was rejected. The learned counsel for the applicant has pressed this application on the ground that the applicant was simply a Taxi driver and having no concern with the co-accused and that nothing was recovered from his possession so much so that the bag contained Charas was found in possession of the co-accused. The learned counsel has further urged that the maximum punishment provided for the offence is five years' R.I.
5. Mr. Habib Ahmed, A.A.-G. Has not opposed the grant of bail to applicant on the ground that his case requires further inquiry and no contraband has been recovered from his possession and further that it is yet to be established that the applicant was associated with co-accused in trafficking Charas.
6. We have considered the arguments and are of the view that the applicant deserves the concession of bail as his case required further inquiry and besides that the offence with which the accused/applicant is charged is punishable for five years and it does not fall within the prohibitory clause, he has caused no injury to the Excise Police. We accordingly grant bail to the applicant in the sum of Rs,5,00,000 (five lacs) and P.R. Bond in the like amount to the satisfaction of the trial Court.