2010 PLP 216 (YLR)

HAMID FAROOQ DURRANI, J.

The petitioners Kamran Shah and Muhammad Naseer were indicted in offence under section 9 CNSA read with sections 13/14 Pakistan Arms Ordinance, 1965 through F.I.R. No. 168 dated 15-3-2009 recorded at Police Station, Jungle Khel Kohat. Allegedly, they were arrested on the spot and were refused release on bail through order dated 31-3-2009 passed by learned Additional Sessions Judge-IV, Kohat/Judge, Special Court.

2. It is, inter alia, noted through the first report that on the relevant day 20 KGs of charas was recovered from secret cavities in Bus No.1188/Nowshera which was being driven by co-accused Saeed Ahmad while the petitioners were also present in their respective capacity as Cleaner and Adda Munshi. One Mohib Gul was also taken into custody being second driver of the vehicle. Alongside other said narcotic, 200 rounds of .30 bore were also shown to have been recovered.

3. I have heard learned counsel for petitioners as well as learned Dy.A.-G. on behalf of State and have also examined the available record.

4. It was the contention of learned counsel for petitioners that the petitioner Kamran Shah was a juvenile at the time of commission of alleged offence having been born on 14-7-1993. In the said regard, he referred to the Certificate issued by Al-Khidmat Model School, Peshawar and also the arrest card of concerned petitioner, wherein, his age was shown to be 19/20 years. While arguing regarding merits of the petition in hand, it was contended that the alleged recovery was effected from a passenger of bus which was carrying numerous persons from Peshawar to Karachi, however, no one out of them was associated with the recovery proceedings. It was also the argument of learned counsel that the relevant recovery memo. as well as the statements of purported marginal witnesses thereto did not indicate the exact location of secret cavities, the narcotic was recovered wherefrom. In the circumstances of the case, the petitioners were not in conscious knowledge of the concealment of incriminating articles in the vehicle, the learned counsel concluded. In his view, the case of petitioners was of further inquiry in order to connect them with the alleged offence. He relied on judgments recorded while deciding Cr.M.897/05, Cr.M.1337/08 and Cr.M.368/08, bail petitions on 16-9-2005, 7-11-2008 and 30-6-2008, respectively. 2008 SCMR 991, 2008 P.Cr.LJ 348 and 2006 YLR 3039 were also cited at the Bar.

5. Learned DAG, while opposing the petition in hand, argued that the petitioner No.1 being owner of the vehicle could not be believed to have remained ignorant of the narcotic trafficking at the relevant time. He was further of the view that it was for the petitioners to prove the commission of offence being not in their knowledge.

6. Be that as it may, the arrest card read even independent to the School Certificate, would suggest that the case of petitioner Kamran Shah was of border line in context of his minor age. It is also a matter of record that the site plan prepared by the seizing agency does not disclose the points of presence of petitioners at the relevant time. On the other hand, locale of Gul Jamal Khan, S.H.O. Police Station, Jungle Khel, Muhammad Rauf, A.S-I and Constable Abdul Qayas is duly indicated in the plan. The said fact provides sufficient doubt at the present stage regarding the arrest of petitioners from the spot of occurrence also in view of the fact that petitioner Muhammad Naseer is dubbed as `Adda Munshi' who was not supposed to go with the commercial vehicle on its routine trips. The case of petitioners demands of further inquiry qua their connection with the alleged offence when the contents of arrest card are looked into. It has been prepared in respect of all the accused jointly but does not disclose the place of arrest of petitioners.

7. It is also worth noting that the case of petitioners can be distinguished from the other accused who are drivers of the vehicle in view of the judgments/orders referred to by learned counsel for petitioners. Resultantly, the petition in hand is allowed and the petitioners are required to be released on furnishing bail bonds in the sum of Rs.200,000 (Rupees two lacs) each with two sureties each in the like amount to the satisfaction of learned trial Court which shall ensure the credibility and- financial strength of the proposed sureties, besides their local status, before admission of the requisite bonds. H.B.T./193/P Bail granted.