2012 PLP 1264 (YLR)

ATTAULLAH KHAN, J.

Javed Khan, accused/petitioner has filed this application for his release on bail in case F.I.R. No.54 dated 26-3-2011 under section 9 C.N.S.A. of Police Station Darrah Pezu, Tehsil and District Lakki Marwat,

2. According to the F.I.R., the DPO Lakki Mawat was in receipt of information that a huge quantity of contraband narcotics was being smuggled to Punjab in Truck-rocket No.C-2800/Mardan, Said Azam Khan S.H.O. Police Station Pezu along with police party had made picket/ nakabandi in front of Salateen Hotel situated on National Highway when the aforesaid truck driven by Javed came which was stopped and on his pointation another person named Noor Ali alias Abdul Rahman was also arrested from the aforesaid Hotel Salateen and in their presence from its secret cavities chars weighing 120 kilograms kept in 120 packets were recovered. Both the said accused were thus arrested vide F.I.R. ibid.

3. Learned counsel for the accused/ petitioner argued that direct and conscious possession of the petitioner in respect of the contraband charas has not been proved. He further argued that so far laboratory report is not available to confirm that the material recovered was charas. According to him, the petitioner has no previous history about his involvement in such like activities. His last submission was that co-accused of the petitioner has been admitted to bail by the learned Additional Sessions Judge Lakki Marwat and keeping in view the principle of consistency, the petitioner is also entitled to bail.

4. The learned D.A.-G., however, opposed the grant of bail to the petitioner on the grounds that a huge quantity of contraband chars has been recovered from the truck in question which was in the direct and conscious knowledge of the petitioner as he was found seated on the driver's seat; that the offence carry capital punishment and falls under the prohibitory limb of section 497, Cr.P.C.

5. I have carefully gone through the record and considered the arguments of the learned counsel for the parties.

6. Perusal of the record discloses that the truck mentioned above was stopped by the police party on receipt of spy information. The driver, i.e. the present petitioner, was deboarded therefrom and in his presence the contraband charas weighing 120 kilograms were recovered which were taken into possession by the I.O. in the presence of two marginal witnesses. Four grams from each packet were separated for chemical analysis and sent to FSL for the same purpose.

7. In this case, a huge quantity of contraband chars weighing 120 kilograms have been recovered from the truck which was driven by the petitioner. The latest judgment of the honourable Apex Court in case titled Muhammad Noor v. The State reported in 2010 SCMR 927 contains principles regarding the possession of narcotic substance by an accused. In para-7 of the said judgment, it has been held that:-- "The next question for consideration is as to how far the prosecution proves the possession of narcotic substance by the accused. It is pointed out that in most of the cases it will be very difficult for the prosecution to prove that the accused was knowingly in possession of narcotic drugs; therefore, the Legislature has enacted a provision in the shape of section 29 in the Act to shift the burden upon the accused to disprove the possession once the prosecution proves that the accused was in possession of narcotic drug. Thus, the prosecution first has to discharge the duties of proving the allegation, once it is proved, then the accused is presumed to be guilty of the offence unless he disproves the allegation and charge."

8. As stated above, the prosecution is required to prove that the accused was in knowledge of narcotics under section 29 of the Control of Narcotic Substances Act, 1997, then the burden shifts to the accused to disprove his possession.

9. It has been further observed by the honourable Apex Court in para 8 of the said judgment that: "As regards Driver of the vehicle, it is important to note that when he is driving the vehicle, he is Incharge of the same, therefore, it would be under his control and possession. Hence, whatever articles lying in it would be under his control and possession. The liability of the driver, in view of provisions of section 27 of P.P.C., has been considered by this Court in the case of "Sherzada v. State (1993 SCMR 149), wherein it was observed as under:-- 'The next point raised by the learned counsel was that it is provided in section 27 P.P.C. that when property is in the possession of wife, clerk or servant on account of that person, it is in that person's possession within the meaning of this Code. The learned counsel argued that the appellant was a driver, hence an employee of the owner of the car and even if he is admitted to be in possession of the contraband article on behalf of the owner, he cannot be said to be liable for that possession. But this argument of the learned counsel is without force on the face of it, because section 27, P.P.C. is confined to the Pakistan Penal Code only, as the words 'within the meaning of this Code' appearing in that section clearly indicate. This section has not been made applicable to the Prohibition (Enforcement of Hadd) Order, 1979 as is evident from section 26 of that Order where certain other provisions of the P.P.C. have been made applicable" This Court in the case of Adil Ahmad v. Deputy Collector, C&CE (1991 SCMR 1951), has observed that in view of the provisions of Customs Act, the drivers and owners were both responsible.

10. The above principle is to be followed, according to which the driver of the vehicle is supposed to be in possession of the narcotic kept in secret cavities because he was Incharge of the same.

11. The honourable Apex Court in para 9 of the same judgment has further observed as under:-- "Keeping in view the above principles of law, the appellant Muhammad Noor is Driver, therefore, he is in possession of the vehicle and also possession of the articles whatever lying in it. The allegation against the appellant Muhammad Ramzan is that on his information secret cavities of the vehicle were opened and charas was secured. Thus from such information, it has been established that he had knowledge of the availability of charas in the secret cavities of the vehicle".

12. Being driver, the present appellant was in exclusive possession of the truck, therefore, he is reasonably connected with the presence of 120 kilograms contraband charas kept in the secret cavities of the truck. Keeping in view the quantity of chars, the offence falls under the prohibitory limb of section 497, Cr.P.C.

13. As far as the release of co-accused on bail is concerned, his role is quite different. He was not driving the truck at the relevant time and thus, the role of both the accused cannot be equated. Therefore, the rule of consistency is not applicable to the case of the petitioner. Moreover, the challan has been submitted to the trial Court and the trial is likely to commence.

14. Consequently, I find no substance in this bail petition which is accordingly dismissed. However, the trial court is directed to conclude trial of the petitioner within four months, failing which the petitioner would be at liberty to move for bail afresh. H.B.T./223/P Bail refused.