PLJ 2024 Cr.C. (Note) 113
[Lahore High Court, Multan Bench]
Present: Muhammad Tariq Nadeem, J.
versus
STATE and another--Respondents
Crl. Misc. No. 143-B of 2023, decided on 19.1.2023.
Control of Narcotic Substances Act (XXV of 1997)--
----S. 9(c)--Criminal Procedure Code (V of 1898), S. 497--Qanun-e-Shadat Order, (V of 1984), Art. 38--Bail granted--Allegation against accused--Pointation of co-accused recovered Charras 30kg from alleged Ihatta owned by the accused--No proof is available---only disclosure of co-accused during in police custody inadmissible against him also against other co-accused--Possession of a narcotics recovered from Ihata shall be determine at the time of thal accused no more required to police petition for grant of bail was allowed in circumstances. [Para 4] A
Control of Narcotics Substance Act (XXV of 1997)--
----S. 51--Settled law that once accused succeed to established that his case call for further inquiry, than rigor contain in Section 51 of the CNSA, 1997 could not be attracted--Bail granted. [Para 4] B
Malik Arab Hassan Asif, Advocate for Petitioner.
Mr. Hassan Mehmood Khan Tareen, Deputy Prosecutor General for State.
Date of hearing: 19.1.2023.
Order
Through this petition, Muhammad Anjum Shah petitioner supplicates post-arrest bail in case FIR No. 400, dated 16.06.2022 for offence under Sections 9-C of CNSA, 1997, registered at Police Station Harrapa, District Sahiwal.
2. The accusation leveled in FIR is that on 16.06.2022 at 09:10 p.m. the police party apprehended co-accused Israr Shah and recovered two packets of charas weighing 1270 gram and 1240 grams (total 2510-grams) and on the disclosure of co-accused Israr Shah, the police party further recovered charas, total weighing 30Kg and 620 grams from the Ihata, which, according to disclosure of Israr Shah was owned by petitioner. Hence, this FIR.
3. Contentions heard and record perused.
4. After hearing learned counsel for the parties and going through the record it has straightaway been noticed by this Court that no recovery of narcotic was effected from the petitioner or on his pointation. The narration of FIR disclosed that the whole narcotic substance was recovered from the possession as well as on pointation of co-accused Israr Shah. The only allegation against the petitioner is that the Ihata, from where the narcotic substance was recovered on the pointation of co-accused Israr Shah, was owned by the petitioner, but learned Law Officer after going through the record has frankly conceded that except the disclosure of co-accused, no proof whatsoever is available on the file to connect the present petitioner with the supra mentioned Ihata. Apparently the petitioner has been found connected in this case only on the statement of co-accused, which is inadmissible in evidence and cannot be relied upon. Moreover, under article 38 of the Qanun-e-Shahdat Order, 1984 admission of co-accused before police could not be used against the other accused. Section 38 of the Order ibid is reproduced hereunder for ready reference.
“Confession to police officer not to be proved No confession made to a police officer shall be proved as against a person accused of an offence”
Reliance is placed upon the case law reported as “Raja Muhammad Younas v. The State” (2013 SCMR 669) wherein the Hon’ble Supreme Court of Pakistan held 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.”
The question whether the petitioner had the conscious knowledge or possession of recovered narcotic substance allegedly recovered on the disclosure of co-accused from an Ihata shall be determined at the time of trial. It is settled law that once accused succeeds to establish that his case calls for further inquiry and probe, then rigors contained in Section 51 of the CNSA, 1997 would not be attracted. He is behind the bars since his arrest. The investigation of the case is complete and person of the petitioner is no more required by the police for the purpose of further investigation. A reference in this respect may be made to the case laws reported as Dad Khan vs. The State (2020 SCMR 2062) and Noman alias Noma vs. The State (2020 P.Cr.L.J. Note 40). The petitioner is still awaiting his trial, the conclusion of which is not in sight in near future, therefore, his further detention in jail would serve no useful purpose for the prosecution. Accordingly, this petition is allowed and the petitioner is admitted to post arrest bail on furnishing bail bond in the sum of Rs. 5,00,000/-with two sureties in the like amount to the satisfaction of the learned trial Court.
5. Needless to observe that the observations made hereinabove are only tentative in their nature and are strictly confined to the extent of grant of instant bail.
(A.A.K.) Bail allowed
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