2017 PLP 61 (YLRN)

MUHAMMAD DAUD KHAN, J.--Through instant petition, Jehangir, the petitioner, seeks his post arrest bail in case FIR No.1031 dated 25.11.2013, registered under section 9(c) CNSA, at P.S. Agha Mir Jani Shah, Peshawar.

2. As per prosecution case regarding presence of narcotics in a Vitz Motorcar bearing No.LZL-84, the local police rushed to the spot where on pointation of informer, the vehicle was found being occupied by one Mehboob Ali Khan. On search, 5/5 packets of Charas weighing one Kg each (total 10 Kgs) were recovered from the secret cavities made beneath both the front seats of the said vehicle. On cursory interrogation, the said accused disclosed that the contraband and vehicle are ownership of one Murad Ali. Consequently, initially FIR was registered against both the above said accused. Lateron, during interrogation, petitioner Jehangir was nominated on the basis of statement under section 161, Cr.P.C. of co-accused Mehboob Ali Khan.

3. After arrest of petitioner, he approached the Court of learned Additional Sessions Judge-III, Peshawar for his release on bail which was refused vide order 10.5.2016, hence the instant bail petition.

4. Arguments heard and record perused.

5. Though huge quantity of narcotics has been recovered in the instant case but not from direct possession of the petitioner rather from the secret cavities of vehicle being occupied by co-accused Mehboob Ali, who nominated one Murad Ali as owner of the vehicle along with contraband in the murasila. The petitioner has not been named in the initial FIR rather he was nominated by the co-accused in his statement recorded under section 161, Cr.P.C. Except the statement of co-accused under section 161, Cr.P.C., who has already been convicted by the learned trial Court vide judgment dated 18.12.2015, there is no any evidence collected by the Investigating Agency, making the case of petitioner that of further inquiry under section 497(2), Cr.P.C. for the purpose of bail. The Hon'ble Supreme Court in case titled, "The State through Deputy Director Anti-Narcotic Force, Karachi v. Syed Abdul Qayum" reported in 2001 SCMR 14, while dilating upon the evidentiary value of statement of co-accused made before the police in light of mandates of Article 38 of the Qanun-e-Shahadat Order, 1984, held that statements of co-accused recorded by police during investigation are inadmissible in evidence and cannot be relied upon. Similar view has been reiterated by the apex Court in case titled, "Raja Muhamamd Younas v. The State" reported in 2013 SCMR 669, by holding as under:-- "After hearing the counsel for the parties and going through the record, we have noted that the only material implicating the petitioner is the statement of co-accused Amjad Mahmood, Constable. Under Article 38 of Qanun-e-Shahadat Order, 1984, admission of an accused before police cannot be used as evidence against the co-accused".

6. During trial the co-accused has nowhere mentioned the name of petitioner even in his statement recorded under section 342, Cr.P.C. and defence evidence produced by him, he did not named the petitioner nor described his role in the commission of offence.

7. So far as abscondence of petitioner is concerned, it is well-settled principle of law that bail can be granted if an accused has good case for bail on merit and mere absconsion would not come in way while granting the bail. Mere abscondence of an accused may not be deemed sufficient to refuse bail to him, if his case called for further probe into his guilt within the scope of section 497(2), Cr.P.C. In this respect reliance is placed on the case titled, "Mitho Pitafi v. The State" reported in 2009 SCMR

299. It is settled law that bail may not be withheld as a punishment. A mistaken relief of bail can be repaired by convicting the accused, if proved guilty, but no proper reparation can be offered for unjustified incarceration, albeit, his acquittal in the long run. Besides, no recovery of contraband has been effected from the direct possession of petitioner or at his instance and pointation rather it was made from the secret cavities of vehicle occupied by co-accused so only on the basis of abscondence, petitioner cannot be deprived from the concession of bail who is behind the bars since his arrest and no more required to the local police for further investigation.

8. Before parting, this Court finds it necessary to remind the trial Court that the observations rendered by the High Court, while disposing of bail applications, are not to be considered during the trial of the accused. In this regard the august Supreme Court of Pakistan in Shuaib Mehmood Butt v. Iftekharul Haq (1996 SCMR 1854), has rendered clear guidance, which is to the effect that:-- "However we would like to point out in no certain terms that the observations made by the High Court in the orders granting bail and by us in this order are confined to tentative assessment made for the purpose of disposal of bail applications and not intended to influence the mind of the trial court, which is free to appraise the evidence strictly according to its merits and the law at the time of disposal of the case, which of course, it is needless to say, is the function of the trial Court".

9. In the light of above discussion and deriving wisdom from the dictum laid down by the apex Court, the instant bail petition is allowed and petitioner is admitted to bail subject to furnishing bail bonds in the sum of Rs.2,00,000/- (Two lac) with two sureties each in the like amount to the satisfaction of learned trial Court concerned, who shall ensure that the sureties are local, reliable and men of means. The above are reasons of my short order of even date. HBT/266/P Bail granted.