2014 P Cr (PLP)

IKRAMULLAH KHAN, J.

The petitioner Shah Zaib son of Noor Hussain resident of Bara Khyber Agency seeks his release on bail in case F.I.R. No.437 dated 5-4-2013 under section 9(c), C.N.S.A., 1997 of Police Station Hayatabad, Peshawar on refusal of his bail from the Court of Judge Special Court, Peshawar vide order dated 21-5-2013, hence the instant petition.

2. Precise stated facts are complainant Namdar Khan SI, during the course of Nakabandi intercepted a motorcar bearing Registration No.LXP-215 having on board two persons who were alighted. On query the driver disclosed his name as Shah Zaib while during the search of the vehicle 59 packets of charas garda each weighing 850 grams, in toto 50150 grams from the secret cavity made beneath the deck of vehicle.

3. Arguments heard and record perused.

4. The learned counsel, contended that the accused/petitioner is a juvenile as his age has been shown there of as 16/17 years; that the recovered narcotics were not in his conscious knowledge, being recovered from the secret cavities of the car. No link whatsoever, prima facie connects the accused either with the ownership of car or narcotics; accused was interrogated during the course of investigation whereof he and the co-accused the driver of the car has exonerated the petitioner in their statement recorded under section 161, Cr.P.C.; the accused is no more required for further investigation, while the case against the accused so far has not been commenced.

5. The learned counsel on behalf of State, strongly opposed the contention of petitioners and submitted that, the petitioner being arrested red handed from the car, whereof huge quantity of narcotics charas were recovered. The punishment prescribed thereunder the provision of section 9(c), C.N.S.A., 1997 is either life or death and section 51 of C.N.S.A., 1997 restricts the jurisdiction of the Court in granting bail, too.

6. The available record provided hereto, carefully examine and anxious consideration, given to the contentions of both parties.

7. No doubt, the petitioner along with his co-accused was apprehended when the car, whereof huge quantity of charas was recovered, intercepted by the Police. The principal accused, who was driving the vehicle at the time of recovery of contrabands, in his statement recorded therein, under section 161, Cr.P.C., has categorically exonerated the petitioner, while the same contention as that of co-accused is also substantiated by the present petitioner in his statement before the Police. Statements recorded under section 161, Cr.P.C., are not admissible in evidence as per provision contained thereof under Article 38 of the Qanun-e-Shahadat Ordinance, 1984, but once a statement recorded by Police themselves, bringing on record prima facie detachment of an accused of commission of the offence in question, then, the same at least may be considered for the purpose of bail, keeping in view the other attending circumstances of case. I fortify my this view, by the judgment of this Court in case of Ali Rehman v. The State (2011 PCr.LJ 1182) whereas, his lordship, observed that;-- "Such statement though were not admissible, but when an investigation officer recorded the same, definite purpose behind that was to some extent that he was satisfied with regard to the innocence of accused".

8. The contrabands, was recovered, thereof from the secret cavities made therein the car, while no any incriminating piece of evidence, available on record to prima facie connect the accused either with the ownership, possession of contraband or of the car. Mere presence of a person in a car, no absolute inference be gathered thereof that he is involved in trafficking the narcotics in question. As both the accused hailed from one and the same area, while the principal accused was taxi driver, prudently if assessed, the possibility could not be ruled out that, the petitioner might have engaged him to lead him to his house.

9. In such situation, irrespective of the quantity of the recovered narcotics substances, which shall not be a yard stick for the purpose of granting bail or otherwise, the Court has to pay due consideration to the facts of the case individually in strive of to arrive a just and fair conclusion in dispensation of justice.

10. This Court in case of Ayub Khan v. The State (2012 YLR 1015) observed thereof as:-- "Possession of narcotics, proof of, direct conscious possession had to be shown by the prosecution at the time of the trial. Person seated in vehicle could not be blindly held responsible for anything kept in the secret cavities of the vehicle unless it was established that he was in knowledge or conscious possession of the narcotics recovered from the vehicle".

11. The accused as per the prosecution case is of 16/17 years old, definitely, falls within the definition of juvenile accused, being first ever involved in such like case, while no criminal history is deducible then, instead of keeping such a juvenile in judicial lockup, justice demanded to be dealt with a lenient view.

12. In this view of the matter, guidance may be taken from the case of Raheem Dad v. The State (2012 YLR 2590), whereof the juvenile accused was released on bail even in an offence, carried capital punishment.

13. Keeping in view, the facts and circumstances of the case in hand, this petition is accordingly allowed/accepted and the petitioner is admitted to bail provided he furnishes bail bonds to the tune of Rs.2,00,000 with two sureties each in the like amount to the satisfaction of the trial Court/Alaqa Magistrate/Duty Magistrate. HBT/372/P Bail refused.