2008 P Cr (PLP)

MUHAMMAD RAZA KHAN, J.- The petitioners herein were intercepted by the Customs Authorities on 2-4-2007 and vide an F.I.R No.12/2007 both the petitioner were charged for the transportation of narcotics. Their request for bail was refused by the learned Courts, hence this application for the release of the petitioner on bail.

2. I have listened to the detailed arguments of the learned counsel for the parties.

3. Petitioner No.1 was admittedly driving the truck when it was intercepted and allegedly huge quantity of more than 200 kilograms of narcotics was recovered from the secret cavities of the truck. Petitioner No.2 was stated to be the cleaner of the vehicle. So far as the role of the petitioner No.1 (i.e. the driver) is concerned, there could be no two opinions that he having the exclusive control of the vehicle, he was certainly having the knowledge of the material placed inside the secret cavities thereof to be ultimately delivered to the recipient at destination However, the role of petitioner No.2 is a bit distinguishable. Although he cannot be equated with the position of a conductor of a public transport vehicle or that of the passenger who was travelling in a taxi cab. The conductor has a specific function of handling the passengers en-route and therefore he is not held responsible for the recoveries effected from the passengers of the transport vehicle and similarly his conscious knowledge of the contents of the secret cavities of the vehicle also requires solid proof whereas the passengers in a taxi cab is not at all responsible of the contents of the secret cavities nor the driver of the public transport vehicle can be held liable for the contraband material in possession of the passengers. The cleaner of the truck has a distinctive role as he does not have to look after the passengers rather, be cleaning the vehicle, he certainly comes across the secret cavities of the truck and may have knowledge of the contents therein. However, in the case in hand, the investigating agency has not bothered to collect evidence with regard to the role of petitioner No.2.

4. This is a case where the Customs Authorities have investigated a case of narcotics and despite several directions in this regard, issued by the courts from time to time, the officials have repeated the blunders. The recovered material was of three types. Firstly, the 100 packets of Charas with a monogram stamp. Secondly, the 86 packets of Charas with no stamp/seal and thirdly, the opium comprising of 30 packets. Allegedly the Investigating Officer has taken sample from each of the packets but he amalgamated such samples and thereby the entire purpose of getting the sample from each slab/packet was defeated. The Investigating agency has forwarded three samples of 10 grams each but on receipt of the samples at the F.S.L, the said weight was not found to be intact. It was increased in one sample and decreased in two others. It also creates considerable doubt in the prosecution case. However, the benefit of such doubt cannot be extended to the accused at bail stage particularly when huge quantity of narcotics was recovered from the said vehicle. Despite the procedural lapses on the part of the investigator of the Customs Department, the release of petitioner No.1 on bail shall not set healthy precedent as the narcotics tend to injure the roots of the society. The role of petitioner No.1 is, therefore, established on the tentative assessment of the record but the role of petitioner No.2, needs further enquiry particularly with regard to control over the recovered material or the conscious knowledge about the presence of such material at the secret cavities. Hence without discussing further merits of the case, the plea for bail on behalf of petitioner No.1 is declined whereas the request of petitioner No.2 Sher Wali Khan is allowed. He may be released on furnishing bail bond in the sum of Rs.2,00,000 with two sureties each in the like amount to the satisfaction of Illaqa/Judicial Magistrate. H.B.T./188/P Order accordingly.