2011 PLP 1187 (YLR)

MAZHAR ALAM KHAN MIANKIIEL, J.

The two lady petitioners involved in a case under section 9(c) C.N.S.A., 1997, registered vide F.I.R. No.700 dated 5-9-2010 Police Station Gul Bahr, after dismissal of their bail application by the lower forum, seek their release on bail through instant application on the grounds that both of them being women are entitled under the law to be released on bail and also claimed innocence as they had nothing to do with the alleged recovery of contraband because they boarded the car on their request for a lift; they had no conscious possession of the alleged contraband; the police too, during the investigation has failed to' bring any thing on the record to connect the petitioners with the commission of offence. The investigation in the case is complete and they are no more required by the police for the purpose of investigation and keeping the petitioners in jail in the circumstances would amount to punishment before their conviction.

2. As against that, the learned A.A.-G. submitted that a huge quantity of one hundred kilograms of chars was recovered from the rear seat and boot of the car and recovery of such a huge quantity of narcotics from the car wherein the petitioners were also present and recovery was also made from the rear seat where the two ladies were seated can safely be saddled with tile conscious possession of the narcotics; the FSL report has also confirmed the said recovery to be "chars; the petitioners have failed to substantiate their stance for taking a lift from the two male accused who were not related to them as under the provisions of C.N.S.A., possession and recovery of illicit articles is presumed unless and until the contrary is proved. The petitioners in the circumstances are not entitled to the concession of bail.

3. Learned counsel for the petitioners and the learned A.A.-G. for the State were heard and record of the case gone through with their assistance.

4. The perusal of the record would reveal that inspector S.H.O., Attique Shah of Police Station Gul Bahar, Peshawar along with police party stopped a vehicle bearing Registration No.LXL-7334 on a secret information on Grand Trunk Road, opposite Daewoo Bus Terminal Peshawar. One Muhammad Imran was on the front seat along with the driver Kashif Nawaz whereas the two ladies, petitioners herein, were on the rear seat of the car and the complainant with the help of the police party recovered one hundred kilograms/one hundred thousands grams of "chars" from the rear seat and trunk of the car. All the four were booked in the above case and were arrested. The recovered material was got examined by FSL at Peshawar and the examining officer confirmed it to be "chars".

5. The petitioners in the instant case were arrested while travelling in the car and have failed to justify their presence in the car and also failed to justify that they were not in the conscious possession of the contrabands. It would be immaterial in the circumstances of the case that the recovery was not made from their personal and immediate possession. Their presence in the car is sufficient to link them with the recovery. Under the law if a person is found in possession of illicit articles that would be presumed true unless the contrary is proved. Section 29 of the Control of Narcotic Substances Act, 1997 is self-explanatory in this regard. Nothing on the record to the contrary is available which could suggest otherwise. Their stance of taking a lift from the driver of the car is not acceptable and appealing as in the social set up we live in two women amongst whom one is a young lady of 20/21 years cannot travel with the two stranger men with licit purpose and such a company can alone be for an illicit purpose and that licit purpose is not on the It record.

6. The protection provided to the women for the purpose of their release on bail in such like cases in the circumstances would mean to give them a licence to go with the business with free hand. Their case falls in the prohibitory clause of section 497, Cr.P.C. which disentitles them for their release on bail. Reliance of the learned counsel for the petitioners on a judgment reported in Muhammad Faisal v. The State (2006 YLR 3039) in the circumstances, when a prima facie case against the accused on tentative assessment of the record is there, would not be helpful for the rescue of the accused. The petitioners in the circumstances are not entitled to the relief claimed for. Hence, their bail application is dismissed as such.

7. However, before parting with the judgment, this Court would also like to opine that smuggling of narcotics has become a menace, representing a threat to our younger generation and if our youth is left at the mercy of such mafia, we would lose our national character. The law of Control of Narcotic Substances Act, 1997 is not being utilized in its true perspective (though some of the provisions also require to be revisited by the legislature) as it provides the mechanism and rehabilitation of the addicts and the Federal Government in this regard should activate National Fund for control of drug abuse. The special Courts under Act ibid should seek assistance from all the concerned departments of the government to deal with this menace according to circumstances of each case. Any further slackness on our part would not give us a chance to rebuild our nation. It is the need of the day that all of us should realize our responsibility to save the nation.

8. Copies of tile judgment be also sent to all the concerned departments for the observations made above. A.R.K./386/P Bail application dismissed.