2017 PLP 36 (YLRN)

MOHAMMAD IBRAHIM KHAN, J.

This is an application for the grant of post arrest bail of accused petitioner Jihad Ali who is implicated in case FIR No. 278 dated 04.04.2016, charged under section 9C CNSA registered at P.S Cantt Kohat. Prior to the application for the grant of seeking the same relief was dismissed by the learned ASJ-IV, Kohat vide order dated 18.04.2016.

2. As is reflected from the contents of the report that while the police officials of Cantt Kohat were checking the vehicles near Kaghazai Check Post. There the petitioner driving Suzuki RPT-3271 who was accompanied by three other persons namely Rehan Ali, Mir Jana and Jawad Ali when stopped for checking from the driver seat on search 10 packets charas weighing each 1200 grams total of which on weighment found 12000 grams kept secretly behind the driver seat from the body of the said Suzuki were recovered, out of which 5/5 grams charas gardah were separated for the chemical analysis.

3. Having heard the arguments of learned counsel for the petitioner and learned AAG for the State.

4. It is as observed that the petitioner being the driver of the Suzuki from which the contraband material was recovered it at exactly at the time of recovery was driven by him. Now the question would come whether the petitioner was of conscious knowledge of the contraband charas which was secretly placed in the body of the said vehicle. This query according to the learned counsel for the petitioner that when the vehicle is a public transport the driver is not responsible for any material supposedly implanted egressed or ingressed. The petitioner intermediary detachment or nexus to his ignorance cannot be brushed aside. Further advancing his words it is said that it is factual controversy and so is a matter of further inquiry.

5. It is a case of recovery of huge contraband material. The quantity of which has exceeded than the limit in the event when the trial is conducted and the recovery from the vehicle in question and the presence of the accused petitioner being driver of this vehicle are proved will definitely invite punishment which may figure in the prohibitory clause of section 497, Cr.P.C. The FSL report is also in positive, which further corroborates that the recovered stuff is a contraband material of the type mentioned in the recovery memo.

6. The arguments of the learned counsel for the petitioner that the accompanying accused Rehan Ali has been let free by the judgment contained in Bail Application No. 1458-P/2016; therefore, on the ground of consistency the petitioner is entitled to the concession of bail. The wisdom contained in the esteem verdict reveal that the accompanying accused Rehan Ali has no doubt been released on bail, but the role of the petitioner and that of Rehan Ali co-accused is quite different. Rehan Ali co-accused is said to be a passenger while this petitioner is the driver, who can be saddled with conscious knowledge of the contraband charas recovered from the Suzuki vehicle when too the recovery is from the back seat of the driver seat.

7. Hon'ble the Apex Court after all in consideration of this menace to be against the humanity and public at large in title Sucha Gul v. The State Cr. PLA No. 15 of 2015 upholding the judgment of Peshawar High Court, dated 08.12.2011 passed in Cr. M.B.A. No. 1716-P/2014 where even the recovery was of 4000 grams charas, whereas in this case the recovery is almost triple times of the same recovery where by the bail was refused.

8. It is thought for that the petitioner is prima facie one way or the other connected with the crime, when the prosecution on the basis of evidence under the investigation will lead to believe of his implication.

9. Suffice it to say that the judgments referred by the learned counsel for the petitioner 2010 YLR 701, 2010 YLR 284, 2012 YLR 314 and 2010 YLR 306 in all the respective cases reported in on perusal would reveal that quite different facts are in existence than if compared in this case; therefore, hardly been beneficial for the grant of bail.

10. Needless to say that while this petition is dismissed, when the trial is commenced the learned trial court shall not be influenced from the findings in this order and shall dispose off the case on the evidence to be led in the trial. WA/321/P Petition dismissed.