Abdul Hameed Dogar, HCJ.--This petibon for leave to appeal is filed against judgment dated 22.9.2008 passed by learned Judge in Chambers of Peshawar High Court, Peshawar whereby Crl.
Misc. No, 119 of 2008 filed by petitioner was dismissed and he was declined concession of bail.
2. Briefly stated facts are that on spy information that narcotics is being smuggled in Bus No, DR- 9711 from Mardan to Karachi complainant Rahat Ali Shah, SHO Police Station ANF D.I.Khan blocked Dera-Bannu Road near CRBC. When the above mentioned bus reached there it was stopped and from its roof, beneath the bed in the driver's cabin a red coloured plastic bag was recovered in which five plastic envelopes wrapped in yellow colour solution tape containing opium weighing nine kilograms were found. Ten grams from each packet were separated for chemical analysis while the remaining were sealed. On inquiry the driver disclosed his name as Muhammadullah while the person sitting rear him as Ehsanullah and the person sitting on the cleaner's seat as Adnan. After usual investigation all the above named three were arrested and sent up to face trial.
3. Feeling aggrieved all the accused filed application for bail before learned Peshawar High Court, D.I.Khan Bench which was allowed to the extent of co-accused Adnan and Ihsanullah on the ground of being juvenile whereas application for petitioner was dismissed, as stated above.
4. It is vehemently contended by learned counsel for the petitioner that petitioner was driver of the bus and the contrabands were not recovered directly from his possession rather it was recovered from the cabin made on the roof. According to him, though there were so many passengers in the bus but none was cited as witness. He further contended that bus was coming from Mardan whereas petitioner boarded in it from Nowshera and occupied driving seat and had no knowledge about the contrabands lying in the cabin. He contended that petitioner has been involved in this case only on suspicious and surmises which makes it a case of further inquiry.
5. On the other hand Sh.Riazul Haq, learned Special Prosecutor ANF supported impugned judgment and contended that the cabin from where the contrabands were recovered was in the exclusive use of petitioner as such it cannot be held that he has no knowledge about it.
6. We have considered the arguments learned counsel for the parties and have gone through the material produced on record. Admittedly the contrabands were not recovered directly from the possession of the petitioner rather it was recovered from the cabin made on the roof. The question whether the cabin on the roof of the bus was in the exclusive use of driver or for the passengers cannot be decided here as it is a factual controversy which cannot be resolved in a bail petition.
Therefore, we are of considered view that case of the petitioner is of further inquiry. Accordingly, this petition is converted into appeal and is allowed.
7. These are the reasons of our short order of even date.