JUDGMENT SHEET
IN THE PESHAWAR HIGH COURT, PESHAWAR
(Judicial Department)
Cr.MBA No.1334-P of 2016.
JUDGMENT
Jehangir Vs The State.
Date of hearing 17.06.2016
Petitioner by: Mr. Fazle Haque Kohidamani Advocate.
Respondent/State by: Mr. Rab Nawaz Khan AAG.
MUHAMMAD DAUD KHAN, J:- Through instant petition,
Jehangir, the petitioner, seeks his post arrest bail in case FIR
No.1031 dated 25.11.2013, registered under Section 9-C
CNSA, at P.S. Agha Mir Jani Shah, Peshawar.
2. As per prosecution case regarding presence of
narcotics in a Vitz Motorcar bearing No.LZL-84, the local
police rushed to the spot where on pointation of informer, the
vehicle was found being occupied by one Mehboob Ali Khan.
On search, 5/5 packets of Charas weighing one Kg each (total
10 Kgs) were recovered from the secret cavities made beneath
both the front seats of the said vehicle. On cursory
interrogation, the said accused disclosed that the contraband
and vehicle are ownership of one Murad Ali. Consequently,
initially FIR was registered against both the above said
accused. Lateron, during interrogation, petitioner Jehangir
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was nominated on the basis of statement under section 161
Cr.PC of co-accused Mehboob Ali Khan.
3. After arrest of petitioner, he approached the Court of
learned Additional Sessions Judge-III, Peshawar for his
release on bail which was refused vide order 10.5.2016, hence
the instant bail petition.
4. Arguments heard and record perused.
5. Though huge quantity of narcotics has been recovered
in the instant case but not from direct possession of the
petitioner rather from the secret cavities of vehicle being
occupied by co-accused Mehboob Ali, who nominated one
Murad Ali as owner of the vehicle alongwith contraband in
the murasila. The petitioner has not been named in the initial
FIR rather he was nominated by the co-accused in his
statement recorded under section 161 Cr.P.C. Except the
statement of co-accused u/s 161 Cr.P.C who has already been
convicted by the learned trial Court vide judgment dated
18.12.2015, there is no any evidence collected by the
Investigating Agency, making the case of petitioner that of
further inquiry u/s 497(2) Cr.PC for the purpose of bail. The
Hon’ble Supreme Court in case titled, “The State through
Deputy Director Anti-Narcotic Force, Karachi Vs Syed
Abdul Qayum” reported in 2001 SCMR 14, while dilating
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upon the evidentiary value of statement of co-accused made
before the police in light of mandates of Article 38 of the
Qanun-e-Shahadat Order, 1984, held that statements of co-
accused recorded by police during investigation are
inadmissible in evidence and cannot be relied upon. Similar
view has been reiterated by the apex Court in case titled,
“Raja Muhamamd Younas Vs the State” reported in 2013
SCMR 669, by holding as under:-
“After hearing the counsel for the
parties and going through the
record, we have noted that the only
material implicating the petitioner is
the statement of co-accused Amjad
Mahmood, Constable. Under Article
38 of Qanun-e-Shahadat Order,
1984, admission of an accused
before police cannot be used as
evidence against the co-accused”.
6. During trial the co-accused has nowhere mentioned
the name of petitioner even in his statement recorded u/s 342
Cr.PC and defence evidence produced by him, he did not
named the petitioner nor described his role in the commission
of offence.
7. So far as abscondence of petitioner is concerned, it is
well-settled principle of law that bail can be granted if an
accused has good case for bail on merit and mere absconsion
would not come in way while granting the bail. Mere
abscondence of an accused may not be deemed sufficient to
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refuse bail to him, if his case called for further probe into his
guilt within the scope of section 497(2), Cr.P.C. In this respect
reliance is placed on the case titled, “Mitho Pitafi Vs The
State” reported in 2009 S C M R 299. It is settled law that
bail may not be withheld as a punishment. A mistaken relief
of bail can be repaired by convicting the accused, if proved
guilty, but no proper reparation can be offered for unjustified
incarceration, albeit, his acquittal in the long run. Besides, no
recovery of contraband has been effected from the direct
possession of petitioner or at his instance and pointation rather
it was made from the secret cavities of vehicle occupied by
co-accused so only on the basis of abscondence, petitioner
cannot be deprived from the concession of bail who is behind
the bar since his arrest and no more required to the local
police for further investigation.
8. Before parting, this Court finds it necessary to remind
the trial Court that the observations rendered by the High
Court, while disposing of bail applications, are not to be
considered during the trial of the accused. In this regard the
august Supreme Court of Pakistan in Shuaib Mehmood Butt
Vs. Iftekharul Haq (1996 SCMR 1854), has rendered clear
guidance, which is to the effect that:-
“However we would like to point out in
no certain terms that the observations
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made by the High Court in the orders
granting bail and by us in this order are
confined to tentative assessment made
for the purpose of disposal of bail
applications and not intended to
influence the mind of the trial court,
which is free to appraise the evidence
strictly according to its merits and the
law at the time of disposal of the case,
which of course, it is needless to say, is
the function of the trial Court”.
9. In the light of above discussion and deriving wisdom
from the dictum laid down by the apex Court, the instant bail
petition is allowed and petitioner is admitted to bail subject to
furnishing bail bonds in the sum of Rs.2,00,000/- (Two lac)
with two sureties each in the like amount to the satisfaction of
learned trial Court concerned, who shall ensure that the
sureties are local, reliable and men of means.
The above are reasons of my short order of even date.
Announced.
17.06.2016.
JUDGE
“A.Qayum”.
