2009 PLP 58 (YLR)

SALMAN ANSARI, J.

This bail application has been moved on behalf of applicant Atif Shahab who was on 19-8-2005 arrested by the ANF staff while driving Bus bearing registration No.1211 from Peshawar to Karachi. The bus was intercepted as it was going to Surjani from Suhrab Goth. On search 100 packets of Charas weighing 100 Kilograms were recovered, along with applicant other accused sitting in bus namely Mudassar Shah, Shah Waliullah and Ashiq Hussain being narcotics peddlers were also apprehended on the spot and the case under sections 6 & 9(c), 13 and 14 of the C.N.S. Act was registered, hence this bail application.

2. Learned counsel for the applicant Atif Shahab has argued that three culprits who were the narcotic peddlers have been released on bail by the Special Court C.N.S. No.1, Karachi Division and the applicant being merely driver having no knowledge whatsoever of narcotics hidden in the bus has been refused bail which is against the norms of natural Justice. Learned counsel for applicant has contended that applicant being a poor person and a victim of circumstances. The applicant had not resisted the search of bus while three co-accused persons had vehemently opposed the same, which shows the bona fide of applicant. The applicant is in custody since date of his arrest and the trial has not been concluded till now, he may therefore be released on bail as the case of applicant requires further inquiry. Learned State counsel has strongly opposed to grant of bail application. He has contended that huge amount of narcotics were recovered from the secret cavity of bus which was driven by the applicant. In support of his contentions the learned State counsel has relied upon the cases of Nadir Khan v. The State (1988 SCMR 1899 [Shariat Appellate Bench]) and Subhan Khan v. The State (2002 SCMR 1797 [Supreme Court of Pakistan]).

3. Heard arguments of the learned counsel for the parties and perused the case law cited at bar.

4. In this case the bail application of applicant was rejected by Division Bench of this Court vide judgment dated 20-11-2006, observing as under:-- 'Thus irrespective of pleas taken by applicant that main culprits have been released on bail and having a case on better footing he too is entitled for grant of bail, does not appear to be plausible, as in case of a driver of vehicle the presumptive, effect under section 29(d) of Act, 1997 is unless, otherwise proved, would be that driver of vehicle for long journey is supposed to have knowledge with regard to the contents and articles being transported in it. Even otherwise learned counsel for the appellant has failed to point out that if it was a passenger bus then neither presence of passengers was appearing therein nor the bus was on its normal route so also no explanation to this effect is also appearing on record. Inter alia, the fact, as stated by applicant during investigation that during travelling, because of refilling of diesel tank again and again, he suspected something wrong, but inspite of that he under the charm of handsome return accepted to be party of criminal activity, he can not absolve from the responsibility.'

5. In the long journey the driver would be in the knowledge of presence of the narcotics during driving of vehicle. Even otherwise, I find that the case of applicant where the huge amount of narcotics substance recovered, bail cannot be allowed, where under section 9(c) of the C.N.S. Act, 1997 the punishment provided is not less than life imprisonment.

6. In view of the above findings and of the learned Division Bench of this Court which I first fully applicable, and case law cited at bar, I, therefore, reject this bail application with directions, to the learned trial Court to expedite the matter and conclude the trial preferably within three months. Accordingly the Criminal Bail Application No.954/2008 stands disposed. N.H.Q./A-121/K Bail refused.