2012 PLP 992 (MLD)

ATTAULLAH KHAN, J.

Petitioner Sardoor Khan, who is charged in a case registered against him and another under section 9 C.N.S.A., vide F.I.R. No. 1092, dated 7-12-2011 in the Police Station Badaber, District Peshawar, has asked for his release on bail mainly on the grounds that nothing has been recovered from his possession; that though a huge quantity weighing One Maund has allegedly been recovered from the secret cavities of the truck but he had no knowledge about presence of contraband in the truck as he was neither driver nor conductor of the said truck. The learned counsel in support of grant of bail placed reliance on the cases of this court delivered in Criminal Miscellaneous No.1091 of 2011 decided on 1-8-2011, Criminal Miscellaneous No.862 of 2011 decided on 5-1-2012 and Criminal Miscellaneous No.1935 of 2011 decided on 9th January, 2012 and submitted that the case of the petitioner being identical to the cases cited above, is a fit case for the purpose of bail.

2. On the other hand, learned counsel appearing on behalf of the State by opposing the grant of bail to the accused/petitioner contended that a huge quantity of contraband has been recovered from the truck wherein the petitioner was sitting while driver of the truck, who is alleged to be brother of the petitioner, fled away from the scene of occurrence and that the FSL report to this effect also supports the prosecution version qua recovery of narcotics and that the arguments advanced by the learned counsel for the petitioner in support of bail can properly be addressed and thrashed out at the trial stage.

3. I have gone through the record carefully and considered the submissions made by the learned counsel for the parties.

4. Perusal of the F.I.R. discloses that the police party on receiving spy information about smuggling of narcotics to Punjab, made nakabandi on the road and waited for the said truck. When the truck appeared on the scene, it was signalled to stop but driver of the truck instead of stopping it, accelerated its speed and tried to escape but was chased by the police party in an official vehicle. After a chase of some distance, the truck was stopped. Both the persons boarding the truck started running towards the nearby fields. The driver of the truck taking benefit of darkness of night made good his escape while another person who also tried to flee was overpowered. The apprehended person disclosed his name as Sardoor Khan, the present petitioner. Search of the truck, led to the recovery of 40 Kgs of chars from the secret cavities which were specially prepared behind the driver's seat. The arrested person, Sardoor Khan, disclosed the name of the driver as the petitioner was apprehended. Both accused, i.e. petitioner and Bismillah Jan are the sons of Aqal Khan meaning thereby that the present petitioner is brother of the driver. I have gone through the cases referred to by the learned counsel for the petitioner. The case of the petitioner is distinguishable from the cases cited above because in the instant case, petitioner is brother of the co-accused Bismillah Jan who was driver of the truck whereas in the cited cases, no such relation existed between the petitioners and the co-accused of that cases. This is a material distinction which makes it clear that the petitioner being brother of the driver who is still absconder, was in league with him and the factum of having conscious knowledge regarding presence of narcotics in the secret cavities of the truck cannot be ruled out. Thus in view of recovery of huge quantity of chars weighing one Maund, the FSL report being positive, relationship of the petitioner with the absconding driver of the truck, prima facie case exists against the petitioner which dis-entitles him to the concession of bail at least at this stage. Moreover, the investigation in the case is complete and the challan has already been sent to the court concerned for trial.

5. For the reasons discussed above, this petition is dismissed with the direction to the trial court to conclude it as early as possible but not later than 2 months from today, failing which the petitioner would be at liberty to move this court for his release on bail. M.W.A./84/P Bail refused.