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16/07/2023

14/11/2022

2020 P Cr. L J Note 40
[Lahore (Multan Bench)]
Before Sardar Muhammad Sarfraz Dogar, J
NOMAN alias NOMA---Petitioner
Versus
The STATE and others---Respondents
Criminal Misc. No. 2504-B of 2019, decided on 17th June, 2019.
(a) Criminal Procedure Code (V of 1898)---
----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(b) & 9(c)---Possession of narcotics---Bail, grant of---Borderline case---Non-availability of report of Government Analyst---Further inquiry---Completion of investigation---Scope---Accused, on the pointation of informer, was apprehended and on his personal search, charas weighing 1265 grams was recovered---Alleged recovery though fell under S. 9(c) of Control of Narcotic Substances Act, 1997 but slightly exceeded the maximum limit as prescribed under S. 9(b) of Control of Narcotic Substances Act, 1997---Recovered contraband was wrapped in a polythene shopper and it was not clear as to whether the weight of the recovered substance was conducted with or without the same---Report of Government Analyst was still awaited, without which, nature of the recovered substance could not be exactly determined---Said discrepancies were sufficient to bring the case of the accused within the ambit of further inquiry as per contemplation of S. 497(2), Cr.P.C.---Accused was the first offender having no criminal antecedents---Investigation of the case was complete and person of the petitioner was not required by the police for the purpose of further investigation---Petition for grant of bail was allowed, in circumstances.
(b) Criminal Procedure Code (V of 1898)---
----S. 497---Bail---Heinous nature of offence---Scope---Mere allegation of heinous offence is not sufficient to keep the accused behind the bars.
(c) Control of Narcotic Substances Act (XXV of 1997)---
----S. 51---Criminal Procedure Code (V of 1898), S. 497---No bail to be granted in respect of certain offences---Further inquiry---Scope---Where accused succeeds in establishing that his case calls for further inquiry and probe, then rigors contained in S. 51, Control of Narcotic Substances Act, 1997 would not attract.
Khawaja Qaiser Butt for Petitioner.
Muhammad Ali Shahab, Deputy Prosecutor-General for the State.
Date of hearing: 17th June, 2019.
ORDER
SARDAR MUHAMMAD SARFRAZ DOGAR, J.---Through the instant petition under section 497, Cr.P.C., Nauman alias Noma the petitioner seeks his release on post-arrest bail in case FIR No.82 dated 20.02.2019 offence under section 9(c) of the Control of Narcotic Substances Act, 1997 ("CNSA, 1997") registered at City Sahiwal, District Sahiwal.
2. As per contents of FIR, precisely, on 20.02.2019, when the complainant along with other police officials was on patrol duty, when he received a spy information that petitioner is selling charas in "Pull Bazar", and if a raid be conducted, he may be apprehended. Whereupon, he constituted a raiding party and conducted a raid. On the pointation of informer, he apprehended a person, who disclosed his name as Nauman alias Noma, the petitioner. On his personal search, charas weighing 1265-grams were recovered from a black shopper which he carrying in his right hand along with sale proceed of Rs. 300.
3. Heard. Record perused.
4. According to the contents of the FIR, the petitioner was apprehended by the police and 1265-grams charas was allegedly recovered from his possession.. Though the alleged recovery apparently falls under section 9(c) of the C.N.S.A., 1997 but slightly exceeds the maximum limit as prescribed under section 9(b) of the C.N.S.A., 1997 to bring the case of the petitioner within the mischief of section 9(c) of the C.N.S.A., 1997. The recovered contraband was wrapped in a polythene shopper and at present, it is not clear as to whether the weight of the recovered substance was conducted with or without the same. Thus fact would be determined by the learned trial Court after recording of prosecution evidence that what was the net weight of alleged recovered narcotic and as to whether the case of the petitioner falls under section 9(b) or it comes under the ambit of section 9(c) of the C.N.S.A., 1997.
5. Another important aspect of the case is that the report of Government Analyst is still awaited, without which, nature, of recovered substance cannot be exactly determined. Therefore, these discrepancies jointly are sufficient to bring the case of the petitioner within the ambit of further inquiry as per contemplation of section 497(2) of the Code of Criminal Procedure, 1898. Mere levelling of allegations of heinous offence is not sufficient to keep the accused behind the bars. When once accused succeeds to establish that his case calls for further inquiry and probe, then rigors contained in section 51 of the C.N.S.A., 1997 would not be attracted.
6. The petitioner is first offender having no criminal antecedents. He is behind the bars since his arrest i.e.20.2.2019. 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. 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 petitioner is admitted to post arrest bail on furnishing bail bond in the sum of Rs.2,00,000/- with one surety in the like amount to the satisfaction of the learned trial Court.
7. Needless to observe that the observations made hereinabove are only tentative in their nature and are strictly confined to the extent of disposal of instant bail petition.
SA/N-30/L Bail granted.

14/11/2022

2020 Y L R Note 20
[Lahore (Multan Bench)]
Before Sadiq Mahmud Khurram, J
LIAQAT ALI alias LIAQI---Petitioner
Versus
The STATE and another---Respondents
Criminal Miscellaneous No. 960-B of 2019, decided on 27th March, 2019.
Criminal Procedure Code (V of 1898)---
----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 9(b)---Possession of narcotics---Bail, grant of---Borderline case---Scope---Allegation against the accused was that he was apprehended by the police and 1230 grams of charas was recovered from his possession---Weight of allegedly recovered material was slightly higher than the maximum weight mentioned in S. 9(b) of the Control of Narcotic Substances Act, 1997 and brought the case within the mischief of S. 9(c) of the Control of Narcotic Substances Act, 1997---Charas, as mentioned in the FIR, was wrapped in a bag at the time of recovery---FIR did not clarify as to whether the charas was taken out of the bag or it was weighed along with the bag---Trial Court, after recording of evidence would determine the net weight of the charas and as to whether the case of the petitioner fell under S. 9(b) or S.9(c) of the Control of Narcotic Substances Act, 1997---Petitioner was not involved in any other case of similar nature---Petition for grant of bail was accepted.
Ateeb ur Rehman alias Atti Mochi v. The State and others 2016 SCMR 1424 and Saeed Ahmed v. State through P.G. Punjab and another PLJ 2018 SC 812 rel.
Masood Asif Butt for Petitioner.
Hassan Mehmood Khan Tareen, Deputy Prosecutor General for the State.
Date of hearing: 27th March, 2019.
ORDER
SADIQ MAHMUD KHURRAM, J.---Through the instant petition under section 497, Cr.P.C., the petitioner, namely Liaqat Ali alias Liaqi is seeking post-arrest bail in the case FIR No.643 of 2018 dated 12.12.2018 registered at Police Station Shah Shamas, District Multan in respect of an offence under section 9(c) of the Control of Narcotic Substances Act, 1997.
2. As .per record, the allegation against the petitioner is that on 12.12.2018 he was apprehended by the police and 1230 grams of "Charas" was allegedly recovered from his possession.
3. Arguments heard. Record perused.
4. The weight of the allegedly recovered narcotics is slightly higher than the maximum weight mentioned in Section 9(b) of the Control of Narcotic Substances Act, 1997. Obviously a meagre quantity of narcotics substance i.e. 230. grams has brought the case of the present petitioner within the mischief of section 9(c) of the Control of Narcotic Substances Act, 1997. It has been mentioned in the FIR that the above mentioned "Charas" was wrapped in a bag at the time of alleged recovery. It is not clear from the contents of the FIR, as to whether the "Charas" was taken out of -the bag or the same was weighed along with it when the same was being weighed by the complainant. It will be determined, after recording of the evidence, that what was the net weight of the allegedly recovered "Charas" and as to whether the case of the petitioner falls under section 9(b) of the Control of Narcotic Substances Act, 1997 or it comes under the ambit of section 9(c) of the Control of Narcotic Substances Act, 1997. Reliance is placed on the case of Ateeb Ur Rehman alias Atti Mochi v. The State and others (2016 SCMR 1424) wherein the august Supreme Court of Pakistan has held as under:--
"After hearing the learned counsel for the petitioner, learned Additional Prosecutor General Punjab and perusing the material available on record, we have noticed that when the petitioner was apprehended, 1014 grams of he**in was allegedly recovered from a shopper bag which he was carrying in his right hand. On Court query, the learned Additional Prosecutor General, after going through the recovery memo. available on the file of police record, could not show that the recovered he**in was weighed along with the polythene bag or otherwise. If the recovered he**in was weighed along with the polythene bag, prima facie, the weight of the he**in without the polythene bag, if weighed, might have come to 1000 grams or less than that and in that eventuality, the case of the present petitioner would have fallen within the ambit of section 9(b) of the Control of Narcotic Substances Act, 1997. In this backdrop, the case of the petitioner becomes one of further enquiry falling within the purview of section 497(2) of the Code of Criminal Procedure."
Reliance is also placed on the case of "Saeed Ahmed v. State through P.G. Punjab and another" (PLJ 2018 SC 812) wherein it has been held as under:--
"The record reveals that the petitioner has been found in possession of 1350 grams of charas. Since the substance recovered marginally exceeds I kg. we doubt petitioner could be awarded maximum sentence provided by the statute. The fact that he has been in jail for more than seven months and his trial is not likely to be concluded in the near future would also tilt in favour of grant of bail rather than refusal".
The learned Deputy District Public Prosecutor states that the petitioners are not involved in any other case of the same nature.
5. For the foregoing reasons, the petition in hand is accepted and the petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs.200,000/- (Rupees two hundred Thousand Only) with two sureties in the like amount to the satisfaction of learned trial Court.
6. Needless to mention that any observations made in the above order are tentative in nature and shall not influence the trial court.
SA/L-11/L Bail granted.

14/11/2022

2021 P Cr. L J Note 34
[Lahore (Multan Bench)]
Before Muhammad Waheed Khan, J
Mst. NASREEN BIBI---Petitioner
Versus
The STATE and others---Respondents
Criminal Miscellaneous No. 259-B of 2020, decided on 28th January, 2020.
(a) Criminal Procedure Code (V of 1898)---
----S. 497--- Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of narcotics---Bail, grant of---Infant detained in jail along with mother (accused)---Completion of investigation---Non-availability of report of Chemical Examiner---Effect---Accused lady was alleged to have been found in possession of 1400 grams of charas---Contention of accused was that an infant aged about 2 months was being detained in the jail along with her---Held; welfare of suckling child demanded that child should not be made to suffer in jail for the offence allegedly committed by his/her mother---Grant of bail did not amount to acquittal of the accused as the custody of accused was shifted from jail lock-up to the hands of sureties, who were made responsible to produce the accused before the court as and when required---Investigation had already been completed---Prosecution had not received the report of Chemical Examiner confirming the fact that contraband allegedly recovered from possession of the accused was in fact charas---Accused had never been previously involved in any criminal cases---Petition for grant of bail was allowed, in circumstances.
Mst. Nusrat v. The State 1996 SCMR 973; Mst. Nasreen v. State 1998 MLD 1350; Mst. Zubaida Bibi v. The State PLD 2005 Lah. 352 and Mst. Nazima Bibi v. The State and another PLD 2018 Pesh. 138 rel.
(b) Criminal Procedure Code (V of 1898)---
----S. 497---Bail---Principle---Scope---Grant of bail does not amount to acquittal of the accused as the custody of accused is shifted from jail lock-up to the hands of sureties, who are made responsible to produce the accused before the court as and when required.
Muhammad Ali Khan Baloch for Petitioner.
Malik Mudassir Ali, DPG and Abdul Aleem, SI with record for the State.
ORDER
MUHAMMAD WAHEED KHAN, J.---Through this petition, the petitioner seeks post-arrest bail in case FIR No.43/2020 dated 14.01.2020 registered under section 9(c) of the Control of Narcotic Substances Act, 1997 at Police Station Multan Cantt., Multan.
2. The brief allegation against the petitioner as per contents of FIR is that on 13.01.2020 at about 11:50 p.m., she was apprehended by the local police on suspicion and Chars weighing 1400-gms, wrapped in a shopper bag, was recovered from her possession.
3. Heard. Record perused.
4. The crux of arguments of learned counsel for the petitioner is that an infant aged about 2-1/2 months is being detained in the jail along with the petitioner (the mother) and this factum was confirmed from the police file vide zimni No.1 dated 14.01.2020. Welfare of suckling child so demands that child should not be made to suffer in jail for the offence allegedly committed by his/her mother. Reliance in this regard may be placed in the case of Mst. Nusrat v. The State (1996 SCMR 973), wherein august Supreme Court has observed that concept of "welfare of minor was incompatible with jail life. Instead of detaining the innocent child/infant in the jail for the crime allegedly committed by his mother, it was in the interest of justice as well as welfare of minor if the mother was released from jail. In another judgment rendered by this Court reported in case of Mst. Nasreen v. State (1998 MLD 1350), the bail was granted on the ground that a suckling child should not be made to suffer in jail. In another judgment passed by this Court in case of Mst. Zubaida Bibi v. The State (PLD 2005 Lahore 352), it is held that as the baby could not be separated from her accused mother and the child should not be punished in any manner and presence of baby in jail would amount to punishment and under the circumstances the mother was admitted to bail. In a recent judgment passed by the Hon'ble Peshawar High Court in case of Mst. Nazima Bibi v. The State and another (PLD 2018 Peshawar 138), the Hon'ble High Court while granting bail to mother observed that the accused/petitioner deserves to be released on bail on this score alone that she is also having a suckling baby with her in the jail premises. Furthermore, the grant of bail does not amount to acquittal of the accused as the custody of accused is shifted from jail lock-up to the hands of sureties, who are made responsible to produce the accused before the Court as and when required. Even otherwise, the investigation has already been completed and the report under section 173, Cr.P.C. has been submitted before the learned Trial Court on 16.01.2020 and there is no progress in the trial. Even the prosecution has not received the report of Chemical Examiner confirming the fact that contraband allegedly recovered from possession of the petitioner was in fact Chars. It is apprised to the Court that petitioner is previously not involved in any criminal case.
5. Under the circumstances, this petition is allowed, and the petitioner is admitted to post-arrest bail, subject to her furnishing bail bond in the sum of Rs.2,00,000/- (Rupees two lacs) with one surety in the like amount to the satisfaction of the learned Trial Court.
SA/N-16/L Bail granted.

14/11/2022

2022 Y L R Note 15
[Lahore]
Before Ali Baqar Najafi, J
ABID ALI---Petitioner
Versus
The STATE and others---Respondents
Criminal Miscellaneous No. 30279-B of 2021, decided on 7th June, 2021.
Criminal Procedure Code (V of 1898)---
----S. 497--- Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of narcotics---Bail, grant of---Delay in conclusion of trial---Scope---Accused was alleged to have been found in possession of 1300 grams of contraband---Earlier petition for grant of bail was not pressed while a direction was issued to the Trial Court to conclude the trial within a period of three months---Report of the Trial Court revealed that the defence was not very much interested in cross-examination of the prosecution witnesses since 3/4 adjournments were sought by the accused---High Court observed that it was not a case in which direction was violated but a case in which the trial could not be concluded beyond the act on the part of the accused and, therefore, by now instead of three months more than 10 and a half months had passed---Petition for grant of bail was allowed, in circumstances.
Bilal Khan v. The State 2021 SCMR 460 distinguished.
Saeed Ahmed v. State through P.G. Punjab and another PLJ 2018 SC 812 ref.
Liaqat Ali Malik for Petitioner.
Abdul Samad, A.P.G. with Mazhar Sial, A.S.I. for the State.
ORDER
ALI BAQAR NAJAFI, J.---Petitioner, Abid Ali, seeks post arrest bail in case FIR No. 154 dated 29.04.2020 registered under section 9(c) of Control of Narcotic Substances Act, 1997 at Police Station Rajoa, District Chiniot, on the allegation that petitioner was apprehended with 1300 grams contained in two pieces weighing 1000 grams and 300 grams whereas 50 grams was taken from the bigger piece and 50 grams from the smaller piece and sent for chemical analysis along with sale proceed Rs. 2000/-, hence this FIR.
2. Arguments heard. Record perused.
3. After hearing the learned counsel for the petitioner, learned APG and perusing the record, it is noteworthy that earlier Crl. Misc. No. 29954-B of 2020 was filed for the grant of post arrest bail which was not pressed while issuing direction to the learned trial court to conclude the trial expeditiously and preferably within a period of 3 months vide order dated 14.07.2020. It is for this reason that a report was requisitioned from the learned trial court who informed that the case was entrusted to the court on 05.10.2020 and the copies under section 265-C, Cr.P.C. were delivered on the same date and the charge was framed on 12.10.2020 and the prosecution evidence was summoned for 26.10.2020. On 26.10.2020 no prosecution witness was present, on 11.11.2020 the learned Presiding Officer was on leave and on 26.11.2020 Saqlain Abbas, Akmal Shahbaz, Irfan and Ahsan Munir/ Constables were present but the lawyers were observing strike and, therefore, the case had to be adjourned for 17.12.2020. On 17.12.2020, the complete set of witnesses was not present and the case was adjourned to 18.12.2020 when all three PWs were present but the learned defence counsel sought an adjournment. Again on 07.01.2021 lawyers observed strike. On 21.01.2021 lawyers observed strike though Ghulam Muhammad/ASI was present but the defence sought an adjournment as the complete set of witnesses was not present. On 11.02.2021 and 18.02.2021 lawyers observed strike. On 08.03.2021 all three prosecution witnesses were present but the defence side sought an adjournment and on 29.03.2021 Examination-in-Chief of Ghulam Muhammad and Akmal Shahbaz, was recorded as PW-1 and PW-2, respectively, but the defence sought an adjournment. On 01.04.2021 PWs could not appear. On 08.04.2021 lawyers observed strike and on 10.05.2021 holidays of Eid-ul-Fitr were there but again on 17.05.2021 the accused could not be produced from jail and on 28.05..2021 the case was fixed for prosecution evidence.
4. Perusal of the above report reveals that defence was not very much interested in cross-examination of the prosecution witnesses since 3/4 adjournments were sought by accused. The learned trial court has, therefore, sought 3 months further time.
5. On the other hand, learned Addl. Prosecutor General, has referred to a judgment reported as Bilal Khan v. The State (2021 SCMR 460), to argue that Supreme Court has now taken a view that contraband exceeding 1200 grams attracts section 51 of CNSA of 1997. However, in the said judgment, the accused had spent just 3/4 months behind the bars and the recovered contraband was amphetamine/ Ice which was considered as lethal contraband. However, in the present case, the petitioner has spent more than a year behind the bars during which a direction issued by this Court though remained affective as the case was adjourned for short dates yet the result is that on account of Covid-19 and the observance of strikes by the Bar, the trial could not be concluded.
6. It is not a case in which direction was violated but a case in which the trial could not be concluded beyond the act on the part of the accused and, therefore, by now instead of three months more than about 10 months have passed.
7. It is a case in which case titled Saeed Ahmed v. State through P.G. Punjab and another reported as (PLJ 2018 SC 812) can be applied wherein the bail was granted for the recovery of 1350 grams chars. Besides, it is not a case of violation of direction as already stated particularly when the earlier bail petition was dismissed not even on merits and without arguing the same at length.
8. In this view of the matter, this bail petition is allowed and the petitioner is admitted to post arrest bail subject to his furnishing bail bonds in the sum of Rs. 1,00,000/- (One Lac Only) with two sureties each in the like amount to the satisfaction of the learned trial court.
SA/A-47/L Bail granted.

14/11/2022

2022 P Cr. L J 1466
[Lahore]
Before Muhammad Tariq Nadeem, J
ALI RAZA---Petitioner
Versus
The STATE and another---Respondents
Criminal Miscellaneous No. 46912-B of 2021, decided on 9th August, 2021.
(a) Criminal Procedure Code (V of 1898)---
----S. 497--- Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Qanun-e-Shahadat (10 of 1984), Art. 38---Possession of narcotics---Statement to police officer not to be proved---Bail, grant of---Accused not in active possession---Scope---Accused was apprehended while accompanying co-accused who was carrying charas weighing 1520 grams---Narration of the FIR disclosed that recovery of the narcotic was affected from co-accused and the accused was only accompanying him---Mere fact that the accused was accompanying the principal accused did not establish that the contraband was in his active possession or even he had any knowledge about it---Accused was found connected in the case only on the statement of co-accused that charas was being supplied to him by petitioner, which was inadmissible in evidence and could not be relied upon---Admission of an accused before police could not be used against him under Art. 38 of the Qanun-e-Shahadat, 1984---Accused was awaiting his trial, the conclusion of which was not in sight in near future, as such, his further detention in jail would serve no useful purpose for the prosecution---Petition for grant of bail was allowed, in circumstances.
The State v. Syed Abdul Qayum 2001 SCMR 14 and Raja Muhammad Younas v. The State 2013 SCMR 669 rel.
(b) Control of Narcotic Substances Act (XXV of 1997)---
----S. 29---Presumption from possession of illicit articles---Scope---General rule is that there is presumption that mens rea, an evil intention or a knowledge of wrongfulness of the act is an essential ingredient in every offence---Prosecution is duty bound to prove that the accused was knowingly in control of something in the circumstances, which showed that he was assenting to being in control of it.
(c) Qanun-e-Shahadat (10 of 1984)---
----Art. 129(b)---Accomplice is unworthy of credit---Scope---Evidence of an accomplice is ordinarily regarded as suspicious; therefore, extent and level of corroboration has to be assessed keeping in view the peculiar facts and surrounding circumstances of the case.
(d) Criminal Procedure Code (V of 1898)---
----S. 497---Bail---Scope---Mere levelling of allegations of heinous offence is not sufficient to keep the accused behind the bars, once accused succeeds to establish that his case calls for further inquiry and probe.
Gul Hassan Dero v. The State 2000 PCr.LJ 657; Hadi Bux alias Hadoo v. The State 2000 PCr.LJ 714; Gul Zaman v. The State 1999 SCMR 1271; Tahir v. The State 2000 PCr.LJ 949; Dad Khan v. The State 2020 SCMR 2062; Noman alias Noma v. The State 2020 PCr.LJ Note 40; Shaukat Ali v. The State and others 2017 PCr.LJ 1020 and Atif-ur-Rehman v. The State and another 2021 SCMR 324 ref.
(e) Words and phrases---
----"Possession"--Meaning.
Black's Law Dictionary, Tenth Edition, Page 1351 and Muhammad Siddique J Jal ADA v. The State 1985 PCr.LJ 659 rel.
Afrasiab Mohal for Petitioner.
M. Arshad Ali Farooqi, Deputy Prosecutor General with Iftikhar, ASI for the State.
ORDER
MUHAMMAD TARIQ NADEEM, J.---Through this petition, Ali Raza, petitioner supplicates post-arrest bail in case FIR No. 745/2020, dated 23.06.2020 for offences under sections 9-C and 15 of CNSA, 1997 registered at Police Station City Kamoki, Gujranwala.
2. As per brief allegation levelled in the FIR, on 23.06.2020 at 10:15 a.m. the petitioner was apprehended by the police party in consequence of a tip-off while accompanying his co-accused who was carrying Charas weighing 1520-grams. 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 two pedestrian were coming from the Ghosia Chowk side, one having a white colour shopper in his hand who attempted to fled away back, on seeing the police party and were apprehended by police contingents after chasing. The narration of the FIR disclosed that recovery of the narcotic was affected from petitioner's co-accused namely Azeem Ali and petitioner was only accompanying him. Mere this fact that the petitioner was accompanying the principal accused will not establish that the contraband was in his active possession or even he had any knowledge about it. As per FIR the petitioner has been found connected in this case only on the statement of co-accused that charas was being supplied to him by petitioner, which is inadmissible in evidence and cannot be relied upon.
Except above statement no other incriminating material is available against the petitioner. Moreover, under Article 38 of the Qanun-e-Shahadat Order, 1984 admission of an accused before police could not be used against him. Article 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 any offence"
Article 39 of the said Order is also reproduced as infra:-
"Confession by accused while in custody of police not to be proved against him Subject to Article 40 no confession made by any person whilst he is in the custody of a police officer, unless it be made in the immediate presence of Magistrate shall be proved as against such person"
Reliance is also placed upon the case laws reported as "The State v. Syed Abdul Qayum" (2001 SCMR 14) and "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 same view was also reiterated by the Hon'ble Supreme Court of Pakistan in the recent landmark judgment reported as "Muhammad Sarfraz Ansari v. The State and others" (PLD 2021 SC 738) wherein it was held as infra:-
"No doubt, as per Article 43 of the Qanun-e-Shahadat Order, 1984 when more persons than one are being jointly tried for the same offence and a confession made by one of such persons admitting that the offence was committed by them jointly, is proved, the court may take into consideration the confessional statement of that co-accused as circumstantial evidence against the other co-accused(s). However, this Court has, in several cases, held that conviction of a co-accused cannot be recorded solely on the basis of confessional statement of one accused unless there is also some other independent evidence corroborating such confessional statement. The principle ingrained in Article 43 of the Qanun-e-Shahadat is applied at the bail stage and the confessional statement of an accused can lead the court to form a tentative view about prima facie involvement of his co-accused in the commission of the alleged offence; but as in the trial, at the bail stage also, the prima facie involvement of the co-accused cannot be determined merely on the basis of confessional statement of other accused without any other independent incriminating material corroborating the confessional statement".
As stated above, the petitioner was arrested along with his co-accused, who was holding a shopping bag in his hand but the fact remains that the contraband was not consciously/actively in possession of the petitioner. Under section 6 of the Control of Narcotic Substances Act, 1997 possession of narcotic drugs is an offence, which is punishable under section 9 of the said Act. Section 6 reads as under:-
"6. Prohibition of possession of narcotic drug etc.---No one shall produce, manufacture, extract, prepare, possess, offer for sale, purchase, distribute, deliver on any terms whatsoever, transport, dispatch, any narcotic drug, psychotropic substance or controlled substance except for medical scientific or industrial purposes in the manner and subject to such conditions as may be specified by or under this Act or any other law for the time being in force."
General Rule is that there is presumption that mens rea, an evil intention or a knowledge of wrongfulness of the act is an essential ingredient in every offence. In other words, the prosecution is duty bound to prove that the accused was knowingly in control of something in the circumstances, which showed that he was assenting to being in control of it. There is no evidence except the oral assertions of the prosecution that he was physically/consciously/actively in control of the alleged contraband. For meeting such circumstances, the Legislature have enacted a provision in the shape of section 29 of the Control of Narcotic Substances Act, 1997. For convenience section 29 of the Act is reproduced as under:-
29. Presumption from possession of illicit articles.---In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of--
(a) Any narcotic drug, psychotropic substance or controlled substance;
(b) any cannabis, coca or o***m poppy plant growing on any land which he has cultivated;
(c) Any apparatus specially designed or any group of utensils specially adapted for the production or manufacture of any narcotic drug, psychotropic substance or controlled substance; or
(d) any material which have undergone any process towards the production or manufacture of narcotic drug, psychotropic substance or controlled substance or any residue left of the materials from which a narcotic drug, psychotropic substance or controlled substance has been produced or manufactured for the possession of which he fails to account satisfactorily.
The 'word possession' has been defined in [Black's Law Dictionary, tenth edition, page-1351], which is reproduced as infra:-
"Possession: 1. The fact of having or holding property in one's power; the exercise of dominion over property. 2. The right under which one may exercise control over something to the exclusion of all others; the continuing exercise of a claim to the exclusive use of a physical thing with the intent to hold it as one's own. La. Civ. Code art. 3421 (1). 4. (usu. Pl.) something that a person owns or controls; property (2). Cf. ownership; Title (1). 5. A territorial dominion of a state or country."
Word possession has also been defined in case law titled as "Muhammad Siddique J Jal ADA v. The State (1985 PCr.LJ 659) wherein it was held as infra:-
"The word 'possess' used in Article 4 means actual physical possession and not mere constructive possession. Moreover, possession should be exclusive of the accused."
It is nowhere in the prosecution's case that the petitioner has some direct relation with the narcotic drugs or as otherwise dealt with. It will not be out of place to mention here that the evidence of an accomplice is ordinarily regarded as suspicion; therefore, extent and level of corroboration has to be assessed keeping in view the peculiar facts and surrounding circumstances of the case. The question whether the petitioner had the conscious knowledge or possession of the recovered narcotic substance from co-accused shall be determined at the time of trial. Furthermore, mere levelling of allegations of heinous offence is not sufficient to keep the accused behind the bars, when once accused succeeds to establish that his case calls for further inquiry and probe and rigors contained in section 51 of CNSA, 1997 would not be attracted. Wisdom is derived from the following case laws reported as "Gul Hassan Dero v. The State" (2000 PCr.LJ 657), "Hadi Bux alias Hadoo v. The State" (2000 PCr.LJ 714), "Gul Zaman v. The State" (1999 SCMR 1271), "Tahir v. The State" (2000 PCr.LJ 949), "Dad Khan v. The State" (2020 SCMR 2062) and "Noman alias Noma v. The State" (2020 PCr.LJ Note 40).
5. It is admitted fact that no recovery has been effected from the petitioner and he was only accompanying his co-accused from whose possession charas was recovered, his active participation in the crime and attraction of section 15 of CNSA, 1997 will be determined at the time of trial after recording of evidence. I am guided by the case laws cited as "Shaukat Ali v. The State and others" (2017 PCr.LJ 1020) and "Atif-ur-Rehman v. The State and another" (2021 SCMR 324).
6. Petitioner 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. 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.1,00,000/- with one surety in the like amount to the satisfaction of the learned trial Court.
7. 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.
SA/A-91/L Bail granted.