2011 MLD 958 (PLP)

ZIA-UR-REHMAN KHAN, J.

Having remained unsuccessful in obtaining his release on bail in the case F.I.R. No.305 dated 4-14-2010 under section 9 C.N.S.A. Police Station Sher Garh Mardan the petitioner is seeking his release on bail through the instant petition till the disposal of the main case.

2. As per contents of the F.I.R. the petitioner while sitting in front seat of an Alto Suzuki Motor Car bearing registration No.2643 D.I. Khan of while colour driven by Gul Rahim, which was intercepted and on search 10 packets of Charas each weighing one K.G. was recovered from its petrol tank. After observing the codal formalities the police obtained the custody of the petitioner and thereafter he was sent to judicial lock up. He applied for his release on bail, but the same concession vide order dated 23-4-2010 has been refused. Thus the instant petition.

3. Learned counsel for the petitioner firstly contended that the arrest of the petitioner has been effected by the ASI of the concerned Police Station, whereas under the provisions of the C.N.S.A. the said police official was not authorized; secondly, that mere presence of the petitioner on the front seat of the said vehicle is not sufficient to connect him with the commission of offence because the alleged recovery has been effected from the petrol tank of the said Car; thirdly that the contraband was not recovered from the immediate possession of the petitioner and fourthly that on the file there is no evidence to connect the petitioner with the ownership of the aforesaid Car. In support of his arguments the learned counsel for the petitioner produced certain judgments reported as PLD 2001 Peshawar 152, 2009 MLD 467 and 2010 YLR 245.

4. On the contrary, the learned State counsel opposed the grant of bail maintaining that the presence of the petitioner in the said vehicle suggests that he had conscious knowledge about the existence of the narcotics concealed in the petrol tank of the said vehicle. He also contended that the punishment provided for such like offence is life imprisonment, which fact also disentitles the petitioner from the concession of bail.

5. As far as the first contention of the learned counsel for the petitioner regarding the arrest of the petitioner at the hands of A.S.-I. is concerned, the same carries substance. The reason is that under section 21 of the C.N.S.A. 1997 it is specifically mentioned that arrest without warrant shall not be effected by a police official below the rank of Sub-Inspector. In this respect the judgment referred to and relied upon imparts strength to the version of the petitioner because in the said judgment reported as PLD 2001 Peshawar 152 while dealing with similar case it has been observed that the said provision of law is mandatory in nature and violation of which entitles the arrested accused to the concession of bail. In the reported case the arrested accused, found in possession of narcotics was released on bail. Rather in addition directions were ordered to be issued to the Inspector General of Police that in future no police official below the rank of Sub-Inspector be allowed to arrest and investigate in such like cases and deviation of the law should in future be considered as the non-compliance of the orders of the Court. At the fag end of this judgment these provisions have been termed to be mandatory and not directory. The other arguments of the learned counsel for the petitioner are also not without force in the light of the other judgments cited at the Bar. The reason is that the narcotics as per contents of the F.I.R. were concealed in the secret cavity i.e. petrol tank and the material so far collected by the prosecution does not ipso facto show that the petitioner had conscious knowledge about the said concealment of narcotics. Moreover, the petitioner was merely travelling in the said, car without having the conscious knowledge of the narcotics and without having any connection with the ownership of the said car. In these circumstances he cannot be blindly held responsible for anything concealed in the secret cavity particularly in the absence of any proof of his ownership pertaining to the said car. At present prima facie there exists no such material having been collected by the prosecution to connect the accused-petitioner with the commission of offence in clear cut manner, rather it is the accused-petitioner who has made out a case of further inquiry. The investigation of the case has been completed and it would serve no useful purpose if the petitioner is any more retained in the lock up. Reliance in support of aforesaid observations can well be placed upon two Judgments reported as 2009 MLD 647 and 2010 YLR 245.

6. The cumulative effect of the aforesaid reasons is that the petitioner has been able to make out a case of further inquiry, accordingly while accepting the instant petition he is ordered to be released on bail subject to his furnishing bail bonds in the sum of Rs.400,000 (four lacs) with two sureties each in the like amount to the satisfaction of the Illaqa/Judicial Magistrate, who shall ensure that the sureties are local, reliable and men of sufficient means. H.B.T./68/P Bail grante