2008 PLP 2014 (YLR)

MUHAMMAD ALAM KHAN, J.

Hakeem Shah accused/petitioner charged in case F.I.R. No.115 dated 5-5-2008 registered under section 9 CNSA in Police Station Paroa, after the rejection of his application of bail by the learned Sessions Judge D.I. Khan vide order 16-5-2008 has moved this Court for the same purpose.

2. Sanaullah Khan S.H.O. of Police Station Paroa along with police party was present on the Ramak Check post for checking smugglers when Bus No.072/AJK from Dera side reached there which was stopped and when checked through Manzoor Ahmad IHC No.512, a person in suspicions condition having a plastic bag of black colour in his lap was deboarded therefrom who disclosed his name as Hakeem Shah son of Gulan Shah, caste Bangash, resident of Katgarh Hangu, presently residing in House No.9-215, Sultanabad Karachi. On checking the bags contained Charas weighing two kilograms and thus the accused was apprehended in the present case.

3. Learned counsel for the petitioner vehemently contended that no recovery of the contraband Charas has been made from the personal possession of the accused/petitioner; that no specific point/place has been given in the site plan by the S.H.O. wherefrom the accused/petitioner was allegedly deboarded by the police constable; that the FSL report is not available on file and that the mandatory provisions of section 103, Cr.P.C. have been violated by the police. In support of his contentions, reliance was placed on the case-law reported as Zar Gul v. The State 2003 PCr.LJ 1392; Sherin Muhammad v. The State 2006 PCr.LJ 726 and Inayatullah v. The State 2006 PCr.LJ 840.

4. In reply, learned Deputy Advocate-General resisted the bail prayer of the accused/petitioner on the grounds that a huge quantity of contraband Charas has been recovered from the direct and conscious possession of the accused/petitioner, that no mala fide on the part of police officials has so far been brought on record and that non-receipt of FSL report alone would not entitle the accused/petitioner to the discretionary relief of bail who is, prima facie, reasonably linked with a heinous offence falling within the prohibitory clause of section 497, Cr.P.C.

5. I have considered the arguments of the learned counsel for the parties and examined the record thoroughly.

6. The argument of the learned Deputy Advocate-General that the offence with which the accused/petitioner is charged is hit by the embargo contained in section 497, Cr.P.C. is without substance in so far as if the Court on the data available on record comes to the conclusion that in the case maximum sentence could not be awarded, the same would go out of the said embargo laid; in section 497, Cr.P.C. as held in the case of Taj Ali Khan v. The State reported in 2004 YLR 439.

7. Furthermore, without touching deep merits of the case at this stage, lest it may prejudice case of either party at trial, suffice it to say that the occurrence has allegedly taken place on main Highway and despite the presence of passengers including driver and conductor of the bus in question, none was cited as a witness to the recovery of contraband Charas, that so far the FSL report has not been made available, that investigation in the case is complete and the accused/petitioner is no more required for the said purpose, therefore, prima facie, the case of the petitioner falls within the ambit of further enquiry, entitling him to the concession of bail.

8. The application is, therefore, accepted and the accused/petitioner is admitted to bail subject to his furnishing bail bond in the sum of Rs.3,00,000 (Rupees three lacs) with two sureties each in like amount to the satisfaction of Illaqa/Judicial Magistrate, who shall see that the sureties are local, reliable and men of means. Above are the reasons for my short order of even date. H.B.T./74/P Bail granted.