2006 PLP 207 (YLR)

MUHAMMAD RAZA KHAN, J.

The present petitioner Gul Rahman was arrested on 20-8-2005 while he was traveling in a Car No. Karachi B-9296 on the charge of being in possession of 3 kilograms of Charas. He along with his co-accused Hayatullah, the driver of the vehicle were arrested in F.I.R. No.269, dated 20-8-2005 P.S. Gandigar Dir Bala. His application for release on bail was not allowed by the Courts below, hence this petition.

2. Learned counsel for the petitioner argued that nothing has been recovered from the personal possession of the present petitioner and he was merely travelling in the car having no connection either with the driver of vehicle or with the owner thereof. The petitioner did not try to escape and disclosed the proper identification indicating his innocent attitude. He further adds that the present petitioner was admittedly a minor and also a regular student of 10th class and had to appear in the examination which was proposed to be held in September, 2005 and deserves to be considered for release on bail under section 10 of the Juvenile Justice System Ordinance. He also pointed out that the investigation has been conducted by an I.H.C. who was not competent to investigate a case of narcotics and the recovery memo., was defective in the sense that there were two memos. one prepared by the I.H.C. and the other by the S.H.O. but there was no indication that the contraband or the sample were ever sealed in a parcel under a particular monogram. Placing reliance on several precedents, the learned counsel argued that the petitioner deserves to be released on bail on the ground of minority, absence of conscious knowledge, the possibility of maximum punishment likely to be awarded at the end of the trial and the defects in the investigation.

3. Learned State Counsel resisted the application by arguing that minority does not provide a licence for drug trafficking and the lenient attitude may endanger the younger generation, involvement in the transportation of drugs. He also referred to section 51 of the C.N.S.A. to argue that the Special Law bars bail proceedings and that the petitioner being the owner of the contraband as admitted by him in his statement under section 161, Cr.P.C. he was not entitled to the discretionary relief of bail.

4. The tender age of the petitioner is not denied. His status of being regular student is proved through the Roll Number Slip issued by the Board of Intermediate and Secondary Education, Malakand and his detention in prison will not serve any useful purpose except damaging the educational career of a young boy. The maximum punishment likely to be imposed in this case at the end of the trial may also bring this case within the permissible limits. Above all, the Investigating Officer has not collected any information to co-relate the present petitioner with the prime accused i.e. driver of the vehicle. In the F.I.R. it has not been stated that the said vehicle was a taxi car. In the statement under section 161, Cr.P.C. an effort has been made to describe that the vehicle was being used as a taxi and it was engaged by the petitioner for the transportation of the contraband. However, no evidence whatsoever is available on the record relating to the use of the said car as a taxi or its engagement on contract by the petitioner or even the amount of fare decided to be paid for the trip. The record merely shows that he was a causal passenger who was provided lift by a driver of a vehicle where the driver was the resident of the petitioner's village. In this case and at this stage of bail thorough scrutiny of the evidence is not possible. Hence the conscious knowledge about the existence of contraband in the vehicle has yet to be determined. Hence it becomes a case of further inquiry. In view thereof, this petition is allowed and the petitioner is admitted to bail in the sum of Rs.200,000 with two sureties each in the like amount to the satisfaction of Illaqa Judicial Magistrate. H.B.T./564/P?????????????????????????????????????????????????????????????????????????????????????????????????? Bail granted.