2026 PLP 633 (MLD)

Muhammad Najam-ud-Din Mengal, J.

This order disposes of Criminal Bail Application No.13 of 2025, whereby the applicants (accused) Hair Biyar Khan son of Hassan Ali and Meraj Ahmed son of Munir Ahmed, are seeking bail after arrest in case FIR No.01 of 2025 dated 17th January 2025, Police Station Excise Bella, District Lasbela under Section 9(1) 3-C of CNS Act, 2022 lodged on the complaint of one Faisal Iqbal, Inspector, Excise and Taxation Narcotics, Bela with the history of recovery of 2000 grams of Charas from beneath the driver seat of the Jeep bearing Registration No.QAS-3134 being driven by the applicant (accused) Hair Biyar Khan.

2. After registration of FIR, the applicants (accused) were investigated and on completion thereof, they were remanded to judicial custody. In the meanwhile, the applicants (accused) filed an application for grant of bail in the Court of learned Special Judge, CNS/Sessions Judge, Lasbela at Uthal ( trial Court ), which was rejected, vide order dated 7th February 2025. Whereafter, instant application has been filed.

3. Heard the learned counsel and perused the available record. At bail stage, the Court has to form its opinion tentatively on the basis of available record and deeper appreciation of record/evidence would effect the merits of the case. Perusal of record reveals that the main accused Hair Biyar Khan was driving the vehicle, while the co-accused Merja Ahmed was found sitting on the front seat. The Incharge of vehicle is always considered to be the Driver of the vehicle and he is held responsible for recovery of any sort of article from the said vehicle. It has been remained the consistent view of the Hon ble Superior Courts that when a person is driving the vehicle he is in the charge of the same and, it would be under his control and possession, hence, whatever articles lying in it would be under his control and possession and more knowledge and awareness would be attributed to the Incharge of the vehicle. Reliance in this regard is place on the case of Kashif Amir v. The State, PLD 2010 SC 1052, wherein it was held as under: It is well settled principle that a person who is on driving seat of the vehicle, shall be held responsible for transportation of the narcotics, having knowledge of the same as no condition or qualification has been made in section 9(b) of CNSA that the possession should be an exclusive one and can be joint one with two or more persons. Further, when a person is driving the vehicle, he is Incharge of the same and it would be under his control and possession, hence, whatever articles lying in it would be under his control and possession. Reference in this behalf may be made to the case of Muhammad Noor v. The State (2010 SCMR 927). Similarly, in the case of Nadir Khan v. State (1988 SCMR 1899) this court has observed that knowledge and awareness would be attributed to the Incharge of the vehicle. [BOLD ADDED]

4. It is by now settled that the driver of the vehicle cannot be absolved from the liability, if substances are transported in the vehicle being driven by him. In the light of foregoing reasons, the Court normally and ordinarily avoids to grant bail on merit, which could cause prejudice to the either party. On the tentative assessment of the record, prima facie it appears that the applicant (accused) namely Hair Biyar Khan was found seated on the driving seat of the vehicle and recovery of 2000 grams Charas were also effected from beneath the driving seat, hence the offence falls within the ambit of prohibitory clause of Section 497(1), Cr.P.C., which is not only heinous, but also non-bailable. Therefore, we are not inclined to grant bail to applicant (accused) Hair Biyar Khan and to his extent the instant application is dismissed.

5. Since further tentative assessment of material available on record, transpires that the co-accused was seated on the front seat of vehicle and nothing has been recovered from his exclusive possession rather the contraband was recovered from beneath the driving seat. Under such circumstances, the case of the applicant (accused) Meraj Ahmed son of Munir Ahmed falls within the ambit of further inquiry, thus the innocence or guilt of applicant (accused) is yet to be determine, which can only be determined after recording evidence, which would take sufficient time till then the case of applicant (accused) Meraj Ahmed falls within the ambit of further inquiry, hence following the principles of further inquiry. In this regard reliance is placed on the case titled as Abdul Ghafoor and another v. The State (2020 PCr.LJ 1512) for facilitation the relevant portion whereof is reproduced as under:

4. Scanning of the record reflects that charas weighing 2 kilograms and heroin weighing 100 grams were recovered from beneath the driving seat of the vehicle, which was being driven by applicant/accused Abdul Ghafoor son of Rustam. It is now settled that driver cannot be absolved from the liability, if contraband are being transported in the vehicle being driven by him. In this behalf reference may be made to the case reported as Haroon Khan v. The State (2017 PCr.LJ 438). Under such circumstances the court normally and ordinarily avoids to grant bail on merit lest it may cause prejudice to the other side. Tentative assessment of the record leads us to the conclusion that there exists a prima-facie non-bailable case against the applicant Abdul Ghafoor son of Rustam. Therefore, he is not entitled to the concession of bail at this stage and to his extent the instant application is dismissed. 5.So far as the case of applicant/co-accused Sher Ahmed is concerned, after perusal of the record it has been observed by us that when he was arrested by the police he was not driving the car nor any narcotics were recovered from his exclusive possession rather he was sitting on the front seat of the car. In such view of the circumstances the case of the applicant Sher Ahmed son of Haji Fateh Muhammad becomes one of further inquiry falling within the ambit of section 497, Cr.P.C. Reliance is placed on the case titled as Hussain Ullah v. The State (2019 SCMR 1651). He is behind the bars since 23.02.2020 and nothing is to be recovered from him. In this backdrop, no useful purpose shall be served by keeping him incarcerated for an indefinite period.

6. For the reasons discussed hereinabove, the application is partly allowed only to the extent of applicant (accused) Meraj Ahmed son of Munir Ahmed, is ordered to be released on bail subject to furnishing bail bond in the sum of Rs.300,000/- (Rupees Three Hundred Thousand), with P.R. bond of the like amount, to the satisfaction of trial Court or Additional Registrar of this Court. The observation made hereinabove are tentative in nature, and same shall not influence the merits of the case at the trial. JK/123/Bal. ????