2018 PLP 122 (YLRN)

SYED MUHAMMAD ATTIQUE SHAH, J.

Accused/petitioner Chan Zeb, being involved in case FIR No.05 dated 13.9.1999, under section 9(C) CNSA read with Articles 3/4 P.O. registered at Police Station ANF, Haripur, and having been refused bail by the learned Judge Special Court (CNS) Peshawar, vide order dated 21.12.2016, has approached to this for the same relief by filing the instant bail petition.

2. As per narration in the FIR, Sardar Abdul Waheed, Inspector, Police Station ANF , Haripur, on 13.09.1999 at 0530 hours, raided the house of other co-accused Laiq Khan, situated in Trangri Payan, District Mansehra, and recovered therefrom 15 kilogram chars, 300 grams heroin along with other articles and the present accused/petitioner was charged in the case on the basis of the statement of co-accused Liaq Khan.

3. Arguments of learned counsel for the petitioner and D.A.G for the State heard and record of the case thoroughly gone through.

4. Perusal of the record reveals that the only material implicating the accused/petitioner in the present case is the statement of co-accused, namely, Liaq Khan. However, the statement of the co-accused before the police cannot be considered as evidence against the accused/petitioner in view of the provision of Article 38 of Qanun-e-Shahadat, Order, 1984. In this regard, the august Apex Court in Raja Muhammad Younas's case (2013 SCMR 669) has observed in terms that: "The petitioner was denied bail by the Trial as well as the High Court. 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." The record further shows that nothing has been recovered from direct possession of the accused/petitioner. Moreover, the house from where the alleged contraband was recovered belongs to co-accused Liaq Khan. Nothing is forthcoming on record to show that the accused/ petitioner remained involved in similar cases in the past. No doubt, the accused/petitioner remained absconder for sufficient long time but mere abscondance would not disentitle him from concession of bail, and that too, when otherwise case for release of accused/petitioner on bail is made out. In this respect, wisdom is drawn from judgment of apex Court in Qamar alias Mitho's case (PLD 2012 Supreme Court 222). "It has vehemently been argued by the learned Additional Prosecutor-General, Punjab appearing for the State that the petitioner had remained a Proclaimed Offender for a period of about four years and, thus, he is not entitled to any indulgence in the matter of bail. We have, however, not felt persuaded to agree with the learned Additional Prosecutor-General in this regard. It has already been held by this Court in the cases of Ibrahim v. Hayat Gul and others (1985 SCMR 382) and Muhammad Sadiq v. Sadiq and others (PLD 1985 SC 182) that in a case calling for further inquiry into the guilt of an accused person bail is to be allowed to him as of right and such right cannot be refused to him merely on account of his alleged abscondance which is a factor relevant only to propriety."

5. Besides, investigation in the case is complete and supplementary challan has been submitted, therefore, the accused/ petitioner is no longer required to the police/prosecution for further investigation. As such, further incarceration of the accused/petitioner would serve no useful purpose. In view of the foregoing discussion, this Court reached to the conclusion that the case against the accused/petitioner in the above circumstances falls within the ambit of further inquiry into his guilt, as envisaged in subsection (2) of section 497, Cr.P.C.

6. Resultantly, the instant bail application is accepted and the accused/petitioner is admitted to bail, provided he furnishes bail bonds in the sum of Rs.100,000/-(One Lac) with two sureties each in the like amount to the satisfaction of Illaqa/Duty Judicial Magistrate, Mansehra.

7. These are the detailed reasons for short order of this Court of even date. WA/181/P Bail granted.