2019 PLP 1876 (YLR)

MALIK HAQ NAWAZ, J.

Petitioner Abdullah son of Halem Ullah resident of Pattan, District Kohistan has been booked in FIR No. 05/2019, under section 9(c) CNSA, 1997 registered at Police Station ANF Gilgit on 30.01.2019.

2. It is pertinent to mention here that one Iftikhar Alam was arrested and allegedly 4-Kg of charas was recovered from his possession and FIR was lodged.

3. During investigation the accused Iftikar Alam disclosed that he bought the charas from the petitioner. The petitioner was arrested and as evident from the prosecution evidence the recovered chars was got indentified by the petitioner in presence of an Executive Magistrate.

4. The post arrest bail of the petitioner was declined by the learned Vacation Judge on 11-02-2019 and the instant Cr. Misc No. 46/2019 has been filed by the petitioner for concession of post arrest bail.

5. The learned counsel for the petitioner submitted that the petitioner is not named in the FIR, which has been lodged after a considerable delay. The learned counsel further submitted that the identification of the charas, which was already in possession of police, by the petitioner is mockery in the law as the same is not covered under Article 40 of Qanun-e-Shahadat 1984. The culpability of the accused in the crime will be determined by the trial Court after recording of some evidence and till then the case is one of the further inquiry. Lastly that the petitioner has no criminal background and no more required for the purpose of investigation. The learned counsel relied 2012 PCr.LJ 235, 2012 YLR 1237, 2012 MLD 602 in support of his contention.

6. The learned Dy. Advocate General vehemently opposed the petition and submitted that there was no melic or ill-will on the part of the Police officials to involve the petitioner in the offence of such heinous nature, which carries the punishment of life/death. The petitioner has owned the ownership of charas in presence of an Executive Magistrate. The statement of Magistrate has been recorded in support of prosecution version. Lastly that the petitioner is from Kohistan and there are chances that if he released on bail, he will jump bail and the trial of the case will be hampered.

7. As evident from the FIR, the petitioner is not named in the FIR, which has been lodged after 1 hour and 10 minutes has delay, when the police station was at a distance of only 3 Km. the petitioner was later on involved in the offence on the disclosure of the petitioner accused Iftikhar Alam from whom the recovery was effected. The identification of charas by the petitioner, while in police custody, whether comes within the purview of Article 40 of Qanun-e-Shahadat, 1984 or not is a question, which will be determined by the trial Court after recording of some evidence. The extent of involvement of the petitioner in the crime will be determined by the trial Court. The above legal as well as factual question of law and facts, have brought the case of the petitioner within purview of further inquiry falling under section 497(2), Cr.P.C.

8. It has already been held by Courts of the country and by this Court also that the bail cannot be refused as a measure of advance punishment. Relief of bail wrongly granted could be compensated by conviction of the accused later on but no compensation could remedy detention suffered by an accused, who if later on acquitted.

9. The petitioner is admitted to bail subject to furnishing bail bonds of Rs.10,00,000/- (Ten lac) with two sureties each in the like amount to the satisfaction of learned trial Court at Gilgit. MQ/12/GB Bail granted.