ZIA-UR-REHMAN KHAN, J.---Having remained unsuccessful in obtaining their release on bail in case F.I.R. No,324 dated 26-9-2010 under section 9-C, C.N.S.A. read with section 13 Arms Ordinance registered at Police Station Jhamra Kohat, the petitioners have moved the instant petition for the said purpose.
2. The prosecution case as per contents of the F.I.R. is that on the day of occurrence there was a spy information that a huge quantity of Charas and ammunition would be smuggled to Karachi by Bus.
Accordingly a picket was laid near the said Police Station. In the meanwhile Bus No, 5147 Karachi appeared, which was stopped for checking. On search of the said vehicle from its roof top a plastic envelope containing 12 packets Charas and four pistols of .30 bore were recovered. The weight of Charas was found to be 14750 grams, (about 15 Kgs.) out of which 4 grams from each packet were separated for FSL analysis, whereas the remaining contrabands Charas were sealed into a separate parcel. Both the petitioners were arrested on the spot, out of whom petitioner No,1 was the driver, whereas petitioner No,2 was the cleaner. They applied for their release on bail, but the same was rejected by the learned ASJ-I Kohat vide order dated 6-10-2010, thus, the instant petition.
3. Learned counsel for the petitioners mainly contended that they are innocent and have been falsely implicated in the instant case, because being driver and cleaner of the said vehicle, they had no conscious knowledge about the presence of the contrabands on the roof top of the said vehicle; that the alleged recovery was not effected from the personal and immediate possession of the petitioners and being so they cannot be directly held responsible for possessing or trafficking the recovered contrabands.
4. On the contrary the learned State Counsel opposed the grant of bail maintaining that being driver and cleaner the petitioners had conscious knowledge about the existence of the narcotics in the said vehicle. He also contended that the punishment provided for such like offence is life imprisonment, which fact also disentitles the petitioners from the concession of bail.
5. Arguments heard and record perused.
6. This court would like to take combined effect of the arguments advanced by both the sides in the light of the material by making its tentative assessment, in order to hold as to whether in the given circumstances of the case there are available sufficient grounds to reasonably connect the petitioners with the commission of the offence or their case is of further inquiry and till the decision of the main case they deserve to be extended the concession of bail.
7. At the very outset this court would like to determine as to in what manner the present petitioners are charged for the recovery and conscious knowledge about the existence of the contrabands.
For this purpose it is evident from the record that the Charas was not recovered from the direct custody of the accused-petitioners and whether they had knowledge of the presence of contrabands on the roof top of the Bus and for that purpose they had shared their knowledge is a question which would be determined after recording of evidence. Mere presence of the petitioners as driver and cleaner of the said vehicle is not sufficient for holding the petitioners responsible for trafficking the recovered contrabands. This fact also as a factual controversy requires recording of evidence as to whether it were the accused-petitioners, who put the contrabands in a plastic bag on the roof top of the vehicle or it was the act of anybody else. In such like, circumstances the superior judiciary and even the apex court while considering the cases of narcotics that of further inquiry have been pleased to grant bail to the involved accused. Reliance in this regard can well be placed upon a judgment reported as 2009 SCM R 954 titled "Muhammadullah v. State". The facts of the said case squarely fulfill the requirements of the instant case.
8. Moreover, from the date of their arrest the petitioners are in the lock up, they were thoroughly interrogated, the investigation against them is complete and their further detention would serve no useful purpose to the prosecution.
9. The cumulative effect of the above discussion leads this court to the irresistible conclusion that in view of the non-existence of reasonable ground to connect the petitioners prima facie with the commission of the offence, their case being of further inquiry is fit for considering their plea for their release on bail.
' Resultantly this petition is accepted and the petitioners are allowed to be released on bail, provided each one of them furnishes bail bonds in the sum of Rs, 300,000 (three lac) with two sureties each in the like amount to the satisfaction of the trial Court. Above are reasons referred to in the earlier short order of even date.