PLJ 2023 Cr.C. (Note) 148
[Lahore High Court, Multan Bench]
Present: Muhammad Amjad Rafiq, J.
versus
STATE etc--Respondents
Crl. Misc. No. 5875-B of 2022, decided on 11.10.2022.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 498--Control of Narcotic Substances Act, (XXV of 1997), S. 9(c)--Post-arrest bail, grant of--Allegation of--3000 grams of charas was recovered--Further inquiry--Such practice is alien to criminal law because if both accused were in car and Charas was recovered from them separately then they should have been booked in one FIR and there was no need to lodge present FIR--Therefore, arrangements so made by police clearly reflect that proceedings were already completed and petitioner was not part of such activity, therefore, to avoid interpolation and cuttings in papers of earlier FIR for false implication of petitioner, this second FIR was preferred to be registered--Counsel for petitioner states that when there is possibility to have a second view of material available on record then accused is entitled to be released on bail--Prosecutor could not controvert such facts except that it is only an irregularity which could finally be settled during trial of case--Trial Court shall thrash such controversy but at present benefit so accrued in favour of petitioner cannot be denied to him--In such circumstances it is better to release petitioner on bail than to put him behind incarceration--Petitioner is behind bars since his arrest without any progress in trial--It is not a case of quantity rather circumstances which makes case of petitioner of further inquiry into his guilt as contemplated u/S. 497(2) of Code of Criminal Procedure, 1898--Bail allowed. [Para 3] A, B & C
2021 SCMR 63 & 2016 SCMR 18.
Sh. Haseeb Akhtar, Advocate for Petitioner.
Ms. Asmat Parveen, D.D.P.P. for State.
Nemo for Complainant.
Date of hearing: 11.10.2022.
Order
Through this petition, petitioner Muhammad Rizwan has sought post arrest bail in case FIR No. 281 dated 28.07.2022 registered under Section 9-C of The Control of Narcotic Substances Act, 1997 at Police Station Saddar Tounsa Sharif, District D.G. Khan.
2. Heard. Record perused.
3. The petitioner though was involved for haying possession of 3000-grams of Charas. He was shown as the person who was sitting on the front passenger seat of car Bearing No. AXR/708/SINDH being driven by one Naseer Abbas. Learned counsel for the petitioner states that it is a novel case of its kind that when such vehicle was halted by the police party, contraband 1000-grams Charas was recovered from driver Naseer Abbas from his personal search and on search of said car from the secret cavities 11-packets of Charas containing 1000-grams each were also recovered on his lead and FIR Bearing No. 280/22 was got lodged against said Naseer Abbas and complaint for such FIR was drafted at 02:00 p.m. on 28.07.2022 wherein name of the present petitioner was not mentioned but just after one and half hours at 03:35 p.m. another FIR (present one) was lodged wherein it was asserted that present petitioner was also sitting in the said car on the passenger seat and a bag was lying in his lap having 3000-grams Charas. It is observed that such practice is alien to criminal law because if both the accused were in the car and Charas was recovered from them separately then they should have been booked in one FIR and there was no need to lodge present FIR. Therefore, arrangements so made by the police clearly reflect that proceedings were already completed and the petitioner was not part of such activity, therefore, to avoid interpolation and cuttings in the papers of earlier FIR for false implication of the petitioner, this second FIR was preferred to be registered. Learned counsel for the petitioner states that when there is possibility to have a second view of the material available on the record then accused is entitled to be released on bail and has placed reliance in this respect on case reported as “Jahanzeb and others versus State through A.G. Khyber Pakhtunkhwa Peshawar and another” (2021 SCMR 63). Learned Deputy District Public Prosecutor could not controvert such facts except that it is only an irregularity which could finally be settled during the trial of the case. Obviously learned trial Court shall thrash such controversy but at present benefit so accrued in favour of the petitioner cannot be denied to him. In such circumstances it is better to release the petitioner on bail than to put him behind incarceration. Reliance is placed on judgment reported as “Zaigham Ashraf versus The State and others” (2016 SCMR 18). Petitioner is behind the bars since his arrest without any progress in the trial. It is not a case of quantity rather the circumstances which makes the case of petitioner that of further inquiry into his guilt as contemplated under Section 497(2) of the Code of Criminal Procedure, 1898. Therefore, while placing reliance on judgments cited above, this petition is allowed and the petitioner is admitted to bail subject to furnishing bail bond in the sum of Rs. 1,00,000/-with one surety in the like amount to the satisfaction of learned trial Court.
(A.A.K.) Bail allowed
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