' ZIA-UD-DIN KHATTAK, J.---Involved in case F.I.R. No,387, dated 26-8-2008 registered under section 9 of the Control of Narcotic Substances Act at Police Station University Town, Peshawar and having refused bail by the learned Additional Sessions Judge-XII, Peshawar vide order, dated 12-9-2008 Zahir Shah, petitioner has approached this Court for the same relief.
2. Short facts forming background of the case are that on 26-8-2008 at 18.10 hours, Zahid Iqbal, Inspector Excise and Taxation, Peshawar along with Naveed Jamal, Inspector, Lal Gul, Muqarrab Ali and Naeem, constables were present in Phase-III Chowk Jamrud Road of Peshawar in connection with Anti-Narcotics compaign. In the meantime, Motorcar No,1396-LWL Silver colour arrived there from Karkhano Market side. The driver was signalled to stop but he accelerated the speed. Finally, after chase, the driver of the said car was compelled to stop at Police Post Danishabad. The driver disclosed his name as Khalil son of Habib Khan of Sarband and another person sitting on the front seat was Zahir Shah son of Muhammad Shah of Kabul presently residing at Kohi Aza Khel. On search of the car, three packets of heroin were recovered from the deck hidden beneath the mat weighing one Kg. Each. After completing the formalities both the persons were arrested on the spot and a report was sent to Police Station University Town where F.I.R. No,387 was registered the same day against the accused.
3. The learned counsel for the petitioner contended that the petitioner was merely travelling in the car without having the conscious knowledge or physical possession of the narcotics. He further contended that the petitioner was neither the owner of the car nor the driver thereof. Since the material was hidden in the deck of the vehicle, therefore, any person sitting with the driver on the front seat was not supposed to know about the contents of the material placed beyond his reach.
By relying on several precedents of this Court, Mr. Noor Alam Khan, Advocate argued that mere presence in a vehicle without the proof of conscious knowledge about the narcotics is not legally and logically sufficient to involve the petitioner for the offence, therefore, he deserved to be released on bail.
4. Mr. Ilyas Ahmad Qureshi, Advocate, representing the State opposed the bail request and submitted that the petitioner was directly charged in the report and he was arrested on the spot in the car from which the narcotics were recovered, therefore, he was not entitled to bail.
5. I have heard learned counsel for the parties and perused the record.
6. It is by now in accordance with the long line of authorities well settled that a person being the driver of a private vehicle, is supposed to be aware of the material recovred from the secret cavities of such vehicle. On the other hand, the driver of a public transport vehicle is not supposed to be responsible for any material in possession of the casual passenger. Similarly, it has been repeatedly held that the person travelling with the driver cannot be automatically considered to be privy to the offence of transportation of the narcotics unless any link or nexus with the vehicle in question or driver or the recovered narcotics is established. A person having proved to be an owner of the vehicle and travelling therein would certainly be considered equally responsible with the driver thereof because he, being the owner, was supposed to have the knowledge about the cavities of the vehicle or there may be a possibility of using the driver as a career only, whereas the owner may be the real culprit. A person found on the front seat of the vehicle cannot be blindly held responsible for anything in the secret cavities of the vehicle unless it is established that he is the owner of the vehicle or the narcotics. Admittedly, the car belongs to one Jehanzeb alias Saddam of Malik Siyal Garhi Bara, Khyber Agency who has been dubbed as an accused in the case, while Khalil son of Habib Khan is his driver. The responsibility could be fixed on the petitioner, if any connection between the petitioner or the owner could be established which has not been done so far by the I.O. Rendering the case as one of further inquiry.
7. In view of detailed decisions in the cases of Shaukat Hayat and another v. The State (2008 PCr.LJ 348), Hussain Abid Jafri v. The State (2006 PCr.LJ 58), Gul Rehman v. The State (2006 YLR 207) and Amanat Ali v. The State (2008 SCM R 991), the insufficient material, whereby the connection of the petitioner with principal accused could not be established was considered to be a sufficient ground for releasing the petitioner on bail particularly when the recovery was made from the secret cavities of the vehicle.
8. In the result, this application is accepted and the petitioner (Zahir Shah) is admitted to bail subject to furnishing bail bonds in the sum of Rs,300,000 (rupees three hundred thousand) with two sureties in the like amount to the satisfaction of Illaqa/Judicial Magistrate 1st Class concerned, who shall ensure that the sureties are local, reliable and men of means.