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BA 1864-15-9 C CNSA Driver 1500 Grams Heroin Rejected

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20 views5 pages

BA 1864-15-9 C CNSA Driver 1500 Grams Heroin Rejected

Uploaded by

wajat123khan
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd
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JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, PESHAWAR


(Judicial Department)

Cr.MBA 1864-P of 2015.

JUDGMENT

Date of hearing 25.11.2015

Petitioner by: Mr. Jawad Khan Advocate.

Respondent /State by: Syed Sikandar Hayat


Shah, AAG.

MUHAMMAD DAUD KHAN, J.- Shah Pur, the

petitioner seeks his post arrest bail in case FIR

No.491dated 12.8.2015 registered under Section 9-C

CNSA, at P.S. Nasir Bagh, Peshawar.

2. As per prosecution case, during Nakabandi

conducted on spy information regarding smuggling

of narcotics, the local police intercepted Alto

Motorcar bearing No.LRR-0859, being driven by

the petitioner, accompanied by co-accused Amir

occupying front seat while Farooq Javed & Kashif

Ali were occupying the rear seat of the said Car. On

search, one packet heroin weighing one Kg was

recovered from the secret cavity of the driver gate.

On personal search from all the four accused,

500/500 grams heroin (Total 2 Kg) were recovered.


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Consequently, the accused were arrested, contraband

alongwith vehicle were taken into possession and a

case vide FIR mentioned above was registered

against the accused.

3. Arguments heard and record perused.

4. As per FIR, from all the three co-accused

500/500 grams heroin were recovered whereas 500

grams was recovered from the possession of

petitioner and one Kg was recovered from the secret

cavity of driver gate of the Car. Learned counsel for

petitioner mainly stressed on the plea of principle of

consistency that all the three co-accused from whose

possession 500/500 grams heroin were recovered,

are availing the concession of bail. However, the

role of petitioner being driver of the vehicle is

different than the role of co-accused who were

occupying other seats as the petitioner being driver

of the vehicle, was Incharge of the same and all the

articles lying therein would be under his control and

possession, so recovery of 1000 grams heroin from

secret cavity of the said vehicle would have been in

the conscious knowledge of petitioner and recovery

of total 1500 grams of heroin made jointly from his


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possession and secret cavity of his car having

conscious knowledge about the same being driver of

the vehicle. Besides, it is well settled principle that a

person who is on driving seat of the vehicle, shall be

held responsible for transportation of the narcotics

having knowledge of the same as no condition or

qualification has been made in Section 9-C of

CNSA that the possession should be an exclusive

one and can be joint one with two or more persons.

The wisdom is derived from the case titled, “Kashif

Amir Vs The State”(PLD 2010 SC 1052).

Therefore, the petitioner cannot get benefit of the

plea of principle of consistency. The recovery of

narcotics is fully supported by the marginal

witnesses of recovery memo being prepared on the

spot in their presence as well as positive FSL report

according to which the samples of recovered

contraband were heroin. No malafide or ill-will has

been pointed by the petitioner on the part of local

police regarding his false involvement in the present

case which could be made a ground for his release

on bail.
-4-

5. Apart from above, it is also held by the

august Supreme Court in the case titled, “Socha Gul

Vs The State” (2015 SCMR 1077), that offences

punishable under CNS Act of 1997 are by its nature

heinous and considered to be the offences against

the society at large and it is for this reason that the

statute itself has provided a note of caution under

Section 51 of CNSA before enlarging an accused on

bail in the ordinary course. When we refer to the

standard set out under section 497 Cr.PC, for grant

of bail to an accused involved in an offence under

Section 9 CNSA, even on that basis we find that an

accused charged with an offence, prescribing

various punishments, as reproduced above, is not

entitled for grant of bail merely on account of the

nature or quantity of narcotics and that appreciation

of evidence is not permissible at bail stage and

secondly in such situation, looking to the peculiar

features and nature of the offence, the trial Court

may depart from the normal standards prescribed in

the case of “Ghulam Murtaza Vs The State” (PLD

2009) and award him any other legal punishment,

thus in our opinion, ratio of judgment in the case of


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Ghulam Murtaza (cupra) is not relevant at bail

stage.

6. The prosecution has collected sufficient

material connecting the petitioner with the

commission of a non-bailable offence, therefore, he

is not entitled to the concession of bail at this stage.

7. In view of what has been observed above,

this petition being devoid of merit is dismissed.

However, the above findings are tentative in nature

for the disposal of instant bail petition only and shall

not influence the mind of the trial Court who is

expected to decide the matter purely on merit and in

accordance with law.

Announced.
25.11.2015.

JUDGE

“A.Qayum”.

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