FAZAL-E-AYAN vs THE STATE
The accused-petitioner sought post-arrest bail in a case registered under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 and sections 6, 7, and 9 of the Control of Narcotic Substances Act, 1997, following the recovery of contraband Charas from a vehicle involved in an accident. The core legal question was whether the petitioner could be admitted to bail when his only implication was through a co-accused's statement under section 161 of the Code of Criminal Procedure, 1898. The Peshawar High Court held that the statement of a co-accused recorded under section 161 has no evidentiary value at the bail stage. The Court laid down the principle that mere implication by a co-accused during police investigation cannot form the sole basis to deny bail, especially when the petitioner's presence in or control over the vehicle is subject to trial appraisal, the trial is not likely to conclude soon, and the chemical examiner's report is awaited. Consequently, the bail petition was accepted.
- Whether the statement of a co-accused under section 161 of the Code of Criminal Procedure, 1898 has evidentiary value at the bail stage?
- Can bail be granted when the sole allegation against the accused is based on a disclosure statement of a co-accused?
- Is the absence of a forensic laboratory report a ground for granting further bail?
- Articles 3/4, Prohibition (Enforcement of Hadd) Order, 1979
- Section 6, Control of Narcotic Substances Act, 1997
- Section 7, Control of Narcotic Substances Act, 1997
- Section 9, Control of Narcotic Substances Act, 1997
- Section 161, Code of Criminal Procedure 1898
' Fazal-e-Ayan, accused-petitioner is charged in case F.I.R. No,473, dated 26-3-2001 under Articles 3/4, Prohibition (Enforcement of Hadd) Order, 1979 read with sections 6, 7, 9, Control of Narcotic Substances Act, 1997, Police Station Nowshera Kalan. After the refusal of bail from the Court of Sessions Judge/Judge Special Court, Nowshera vide his order dated 26-4-2001, he has applied to this Court for his release on bail.
2. On receiving information that on Khoshgi Road near the graveyard a Wagoneer had met an accident which resulted into injuries to two persons, Ghulam Hussain, S.-I. Who was on patrolling duty alongwith two constables, went to the scene of occurrence and found the Vehicle No,RTH- 7535 alongwith two persons there out of whom one Fazal-eAyan was seriously injured while the other namely Faqir Jan received simple injuries. He shifted Fazal-e-Ayan to the hospital for treatment and on suspicion started the search of the vehicle in presence of Faqir Jan and recovered contraband Charas weighing 17 Kilograms from the bumper and spare diesel tank of the said vehicle. He arrested accused Faqir Jan on the spot and for the arrest of other accused Fazal- e-Ayan conveyed information to the Police Station.
3. I have heard the learned counsel for the petitioner, learned State Counsel and have gone through the record of the case with their assistance.
4. The only allegation against the present petitioner is that he has been implicated in the commission of an offence by his co-accused Faqir Jan in his statement under section 161, Cr.P.C.
Recorded during the investigation of the case. At present there is nothing on the record to suggest that the accused-petitioner was the driver of the said vehicle from which the contraband Charas was recovered or he was travelling in the same vehicle when it met an accident. All these factors would be considered at the time of trial when the evidence is recorded. So far as the implication of the accused-petitioner in the alleged offence by his co-accused is concerned, it is settled principle of law that the statement of co-accused under section 161, Cr..C. Made during the investigation of the case has got no value at all and such disclosure is lot admissible in evidence and cannot be relied upon at bail stage. The accused-petitioner is in the judicial lock-up for the last two months and there is no likelihood of early trial. It would, therefore, not be expedient to keep him in jail for an indefinite period. Moreover, the Laboratory Report is yet not received.
' Without commenting upon the merits of the case so that it may not prejudice the case of either side, in view of what has been stated above, I am inclined to release the accused-petitioner on bail, provided he furnishes bail bonds in the sum of Rupees one lac with two sureties each in the like amount to the satisfaction of Illaqa/Judicial Magistrate.