2012 PLP 1015 (YLR)

AZMATULLAH MALIK, J.

Petitioner Ayub Khan son of Yar Rehman seeks his release on bail in case F.I.R. No.630 dated 18-11-2011, under section 9(c) C.N.S.A. of Police Station Tehkal Peshawar as he was refused bail by ASJ-VI/Judge Special Court Peshawar vide order dated 8-12-2011.

2. Brief facts as narrated in the F.I.R. are that the Zahoor Khan, S.H.O. on receipt of information regarding smuggling of narcotics through Vehicle No. 8633 JGA Alto Car from Jamrud side. He arranged Nakabandi near Gul Abad bridge. The said car was seen coming which was signalled to stop but the driver of the vehicle accelerated the speed and tried to run away which was followed by the Police, consequently, it was stopped at some distance. During which one person decamped from the vehicle and succeeded to escape whereas the other person remained seated there, who disclosed his name as Ayub Khan and also claimed the ownership of the vehicle. The car was searched and from the secret cavity carved in the petrol tank 9 packets of charas total weighing 9 Kgs was recovered. From the personal search of the accused Rs.9,000 besides two mobiles cell were recovered. The contraband seized and taken into possession.

3. Learned counsel for the petitioner contended that the petitioner is neither driver nor the owner of the vehicle but was only inmate of the car. The driver of the vehicle who was in active control and domain of the same and who could be tagged with the requisite knowledge has succeeded to escape from the spot whereas the petitioner did not even attempt to escape. Therefore the conscious knowledge of accused about the narcotics concealed in the secret cavity, needs further inquiry. She lastly argued that no evidence was collected to establish the ownership of vehicle with the accused petitioner. In support of her argument she relied on 2010 YLR page 245, 2009 SCMR page 954, 2005 PCr.LJ page 1947, 2009 MLD page 467, PLD 2008 Peshawar page 59 and YLR 2010 page 2811 besides the unreported judgment of this Court in Criminal Miscellaneous No. 1091 of 2011 titled Anwar Jan versus State.

4. On the other hand learned counsel appearing on behalf of State vehemently opposed the grant of bail to the petitioner on the ground that the petitioner was apprehended at the spot while seated in the vehicle from which huge quantity of narcotics was recovered. The petitioner is prima facie connected with the commission of offence the punishment of which falls under prohibitory clause of section 497, Cr.P.C. and do not deserve the concession of bail.

5. I have heard learned counsel for the parties and have perused the record.

6. No doubt the accused petitioner was apprehended at the spot while seated in the car, and from the secret cavities of the said vehicle contraband weighing 9-KGs was recovered. The perusal of record would show that on seeing the Police party co-accused who was driving the car firstly tried to flee away but seeing no chance of his escape parked the vehicle on the road side and fled away, but the accused remained seated in the car, co-accused could be presumed to have the conscious knowledge of the contrabands lying in the car. Direct conscious possession had to be shown by the prosecution at the time of trial and it is yet to be proved that the accused was in any way linked with the absconding co-accused. Further no evidence was collected to establish that the petitioner was in fact the owner of the said car which was used for carrying narcotics nor he was driving, thereof, was mere travelling in the car without having the conscious knowledge or physical possession of the narcotics. The person seated in the vehicle could not be blindly held responsible for anything kept in the secret cavity of the vehicle unless it was established that he was in the knowledge of conscious possession of the narcotics recovered from the vehicle. Thus the case of petitioner clearly falls under subsection (2) of section 497, Cr.P.C. calling further inquiry into the matter. Thus the application in hand is allowed and the accused petitioner is admitted to bail provided that he furnishes bail bond to the tune of Rs.3,00,000 with two sureties each in the like amount to the satisfaction of Alaqa/Judicial Magistrate who shall see that the sureties are local, reliable and men of means. M.W.A./9/P Bail allowed.