Mst. NOOR JEHAN vs KHALID NADIM KHAN and another
The petitioner sought post-arrest bail after being implicated in a narcotics case registered under the Control of Narcotic Substances Act, following the arrest of a co-accused from whom contraband was recovered. The petitioner contended that she was not arrested at the scene, no recovery was effected from her, and her implication rested solely on the inadmissible statement of a co-accused recorded under section 161 of the Code of Criminal Procedure 1898. The Court examined whether the petitioner was connected to the offence and whether she was entitled to bail. The Court held that the prosecution failed to provide direct or indirect evidence linking the petitioner to the crime, noting that the co-accused's statement was inadmissible. Furthermore, the Court observed that the case required further inquiry, no identification parade had been conducted, and the petitioner, being a Pardanasheen woman, fell under the protective proviso of section 497 of the Code of Criminal Procedure 1898. Consequently, the Court granted bail, emphasizing that continued incarceration served no purpose given the lack of prima facie evidence and the delay in submitting the challan.
- Is the statement of a co-accused recorded under section 161 of the Code of Criminal Procedure 1898 sufficient to connect an accused to an offence for the purpose of bail?
- Does the status of a woman as a Pardanasheen entitle her to the benefit of the proviso to subsection (1) of section 497 of the Code of Criminal Procedure 1898?
- Can bail be granted when the prosecution fails to connect the accused with the commission of the offence through direct or indirect evidence?
- Section 7, Control of Narcotic Substances Act 1997
- Section 9, Control of Narcotic Substances Act 1997
- Section 161, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
' Having been involved in case registered vide F.I.R. No,371, dated 19-9-2000 under sections 7/9, Control of Narcotic Substances Act at Police Station Topi, the petitioner applied for pre-arrest ad interim bail which was dismissed by the learned Sessions Judge, Swabi vide order, dated 23-12- 2000. Therefore, she applied for post-arrest bail, the same was also rejected vide order, dated 16-1- 2001 by the learned Sessions Judge, Swabi. Now she has approached this Court for her release on bail.
2. The local police had held Naqabandi on Topi Ghazi Road. Bus No,PRF.4325 was stopped. Mst.
Maryam got down from the said bus and on her search, a bag containing 5300 grams of Charas was found from her possession. Out of the recovered contraband four grams were separated and sent to F.S.L. For Chemical Examination and the remaining was kept in a parcel.
3. Mr. Nek Nawaz, Advocate the learned counsel representing the petitioner argued that neither the petitioner was arrested from the spot nor any recovery of contraband was effected from her nor she was identified after her arrest.
4. It was further argued that she was involved on the basis of the statement of co-accused namely, Mst. Maryam recorded under section 161, Cr.P.C. And her statement is not admissible under the law.
There is no evidence direct or indirect against the petitioner to connect her with the commission of offence.
5. On the other hand, Mr. Jamsheed Khan, Advocate, the learned counsel representing the State argued that the petitioner has committed a crime affecting entire society. She is going of drug peddlers, therefore, she is not entitled to grant of bail.
6. I have heard the learned counsel for the parties and perused the record.
7. I have been persuaded to enlarge the petitioner on bail for the reasons firstly, there is no direct or indirect piece of evidence to connect the petitioner with the commission of offence. She was neither arrested from the spot nor any contraband was recovered from her possession. The only material on which the prosecution has placed reliance is statement of co-accused Mst. Maryam recorded under section 161, Cr.P.C. During the investigation which was inadmissible in evidence.
Reliance in this regard is placed on the State v. Syed Abdul Qayum 2001 SCM R 14.
8. Secondly, the case against the petitioner is of further inquiry because as mentioned above, nothing had been recovered from her possession and she is in jail since her arrest. Wisdom has been drawn from Bahadar Khan v. The State 2000 SCM R 677.
9. Thirdly, petitioner was arrested on 23-12-2000 and till date the prosecution has failed to hold any identification parade.
10. Fourthly, the petitioner is a Pardanasheen woman and her case is covered by proviso to subsection (1) of section 497. Reliance is placed on Mst. Gugoo v. The State PLD 1985 Pesh.
114.
11. Fifthly, the challan of the case has not yet been submitted to the trial Court and keeping the petitioner in jail would not serve any useful purpose.
' Specially when the petitioner is not prima facie connected with the commission of offence on the basis of available record.
' I, therefore, admit the petitioner to bail and direct her release provided she furnishes bail bonds to the tune of Rs,2,00,000 (Rupees two lacs only) with two sureties each in the like amount to the satisfaction of Judicial Magistrate, Swabi, who shall see that the sureties are local, reliable and men of means.
Cited by 1 case
- ZAR MUHAMMAD vs THE STATE 2012 P Cr. L J 1046