' SHAHID ANWAR BAJWA, J.--F.I.R. No,8 of 2011 was recorded at Police Station Divisional Excise Intelligence, Karachi on 21-6-2011. It was stated in the F.I.R. That on receipt of spy information the complainant along with two constables reached the bus stop at Sohrab Goth near Caltex Petrol Pump where a bus after offloading passengers was present and two persons were in the bus, one sitting at the driving seat and other sitting by the side of the driver. They were got down. Present applicant is the person who was sitting next to the driving seat. Personal search did nit lead to recovery of anything incriminating. Search of the bus lead to a secret cavity from which four bundles were recovered. Each bundle was found to contain rods of Charas, each rod weighing 100 Kgs. Grams and then in all 44 kgs. Of Charas was recovered.
2. Learned counsel for the .Applicant submitted that applicant was innocent and he was only a passenger in the bus. He further submitted that there is no evidence that the applicant had any knowledge of any secrete cavity.
3. Learned A.P.-G. Vehemently opposed- this application and she submitted that Charas was recovered from a secret cavity and it has been held by the Supreme Court in Gul Badshah v. The State, 2011 SCM R 984 that a driver and conductor are deemed to be in possession of the narcotic hidden in secret cavities.
4. I have considered the submissions made by the learned counsel and have gone through the record.
5. Learned counsel for the applicant relied upon Muhammad Ullah v. The State, 2009 SCM R 954 and Umar Daraz and another v. The State, 2011 PCr.LJ 559. In Muhammad Ullah's case it was observed as under:-- "(6) We have considered the arguments of 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."
6. In Umar Daraz's case judgment of Muhammad Ullah's case was followed. On the other hand, in Gul Badshah's case (supra) the Supreme Court has held that a driver and conductor are deemed to be in possession of the narcotic substance even in secret cavities and lack of knowledge of secret cavities can be a mitigating circumstance at the time of deciding punishment. Even otherwise provision contained in section 23 of the Control of Narcotic Substances Act, creates a presumption against such drivers and conductors.
7. Next contention of the learned counsel for the applicant that applicant was a passenger does not appear to be of much weight because it is clearly stated in the F.I.R. That when the police party raided the bus passengers had already been off loaded and there were only two persons sitting in the bus, one driver and the other person (present applicant) sitting next to the driver. When all the passengers had left the bus learned counsel was unable to explain as to why the present applicant, if he was a passenger, remained sitting in the bus. Moreover if he was passenger there is no statement regarding any luggage with him. Therefore there appears to be, prima facie, material to connect the applicant to the offence alleged against him., ' Result of the above discussion is that this criminal bail application is dismissed.