The petitioner is involved in case FIR No, 788 dated 29.11.2012 u/S. 9(c) CNSA registered at PS Sher Garh, Mardan. In the first round he was refused bail by the learned ASJ-IV Mardan vide her order dated 22.12.2012 and so by this Court vide order dated 18.1.2013. The petitioner moved an application for inquiry before the DPO, wherein he was declared innocent as at the time of occurrence the real culprit was fled away from the spot. On the basis of the said inquiry report the petitioner, again moved bail application, which was also rejected by the learned ASJ-I/JSP Mardan vide his order dated 6.2.2013. Hence this second bail petition before this Court.
2. The allegation against the petitioner is that he was arrested while transporting 11 K.Gs contraband charas through Truck bearing Registration No, 6406-BU and was found sitting on the front seat alongwith the driver of the said vehicle, on the date, time and place of occurrence and the above mentioned case was registered against him and his absconded co-accused. However, the driver of the Truck was fled away from the spot.
3. Learned counsel for the petitioner argued that the learned ASJ-I Mardan during the course of arguments on 12.12.2012 ordered the police to conduct inquiry that how the Driver, the real culprit was fled, away in the presence of the police, who had encircled the truck. Yaqoob Khan SI appeared before the Court and sought eight days time for conclusion of the inquiry. In spite of fact and express directions of the Court of ASJ-I Mardan no heed was taken by the inquiry officer.
However, before the final conclusion of the inquiry, bail was rejected on 8.1.2013, whereas this Court also without requisitioning the inquiry report dismissed the bail application of the petitioner on 18.1.2013. She also contended that now on the application submitted before the DPO Mardan inquiry was conducted and in that inquiry the real culprit's name was disclosed as Muhammad Riaz and the owner of the Truck was pointed out as Muhammad Aslam. Learned, counsel for the petitioner was of the view that due to CNG strike on the day of occurrence, the petitioner had only taken the lift from the Truck driver and he was not in the conscious knowledge of the contraband recovered from the truck, otherwise he could have also easily fled away/escaped from the spot; that in the light of the inquiry new/fresh ground has been created, on the basis of which the petitioner is entitled to be released on bail.
4. On the other hand the learned State counsel vehemently resisted the arguments advanced by the counsel for the petitioner and stated that once the bail application of the petitioner has already been rejected by this Court and no new ground has been created on the basis of which the accused could be released on bail and huge quantity of contraband has been recovered from the truck, wherein he was present and no plausible explanation has been furnished by the petitioner at that time.
5. I have heard the learned counsel for the parties and perused the record.
6. It is crystal clear from the record that on 12.12.2012 the learned trial Court has ordered the inquiry and the inquiry report reveals that the petitioner was booked for the offence and the real culprit/driver of the truck fled away from spot. Being the truck driver certainly he would have conscious knowledge of the contraband recovered from the truck.
7. No doubt the petitioner was found inmate of the vehicle, but the record reveals that nothing was recovered from his immediate/personal possession, or on his pointation. The record is also silent to show that he was in conscious knowledge of the recovered contrabands and there is also no evidence of any kind on record to reasonably connect him as an associate of the co-accused for the time being.
For the foregoing reasons this petition is allowed and the accused-petitioner is directed to be released on bail provided he furnishes bail bonds in the sum of Rs, 200,000/- with two sureties each in the like amount to the satisfaction of the trial Court.