FIAZ AHMAD ANJUM JANDRAN, J. Through this Criminal Misc. petition, petitioner (Faiz Muhammad) seeks post arrest bail in F.I.R No.18, dated 11.03.2021, under section 9-C/14/ 15 of the Control of Narcotics Substances Act, 1997 (Act of 1997) , Police Station ANF/RD North, Rawalpindi.
2. The allegations set-forth in the F.I.R, are that on 11.03.2021, at about 09:00 am, within the area of Motorway Link Road Exit, Islamabad officials of A.N.F during checking of vehicles, intercepted Toyota Hi-ace bearing Registration No. LES-5855, coming from Peshawar side and on the basis of suspicion, alighted a passenger namely Nida Muhammad having a carton wherefrom five packets of charas weighing 1100 gram each, total 5500 grams, were recovered.
3. Learned counsel for the petitioner contends that neither the petitioner is nominated in the F.I.R nor any narcotics was recovered from his possession; that his involvement on the statement of principle accused is illegal; that petitioner is behind the bars since arrest, therefore, entitled to the concession of bail. Learned counsel placed reliance upon case laws reported as 2013 SCMR 669 & 2001 SCMR 14 .
4. On the other hand, Special Prosecutor A.N.F argued that principle accused (Nida Muhammad) was just a carrier who disclosed about the delivery of narcotics to the petitioner in Ganjmandi, Rawalpindi.
5. Arguments heard, record perused.
6. Record reveals that the petitioner was arrested on 12.03.2021 on the statement of accused Nida Muhammad.
Except that statement, nothing is available on record which could suggest that petitioner is involved in the commission of alleged of fence.
7. The Investigating Officer, present in the Court, when confronted regarding business of the petitioner , states that he is running a merchant shop and when asked as to whether any effort had been made during investigation to confirm that principle accused Nida Muha mmad was just a carrier , from where he received the consignment, to be finally transmitted to the petitioner , he answered in negative. When investigation to that extent has not been made, it is appears that chain of the alleged transmission of narcotics is incomplete, in so far as tentative assessment for the decision of instant bail petition is concerned.
8. Mere on the statement of co-accused, petitioner could not be allowed to remain in prison for an indefinite period, particularly when there is no material on record qua his involvement in the alleged offence despite being remained on physical remand.
9. The legal proposition on the subject is unambiguous as Article 38 of the Qanu n-e-Shahadat Order , 1984 lays restriction upon use of admission of an accused against the co-accused in terms that "No confession made to a police of ficer shall be proved as against a person accused of any of fence,"
10. On the principle, reliance is placed upon the case laws referred by the learned counsel for the petitioner reported as "Raja Muhammad Younas v, the State" (2013 SCMR 669) & "The State through Deputy Director Anti-Narcotic Force, Karachi v. Syed Abdul Qayumn (2001 SCMR 14) wherein the Hon'ble Apex Court has graciously laid down that "the only material implicating the petitio ner is the statement of co-accused Amjad Mahmood, Constable. Under Article 38 of Qanun-e-Shahadat Order , 1984, admission of an accused before police cannot be used as evidence against the co-accused."
11. In case of Raja Muhammad Younas (supra) petitioner had also criminal record while in the case-at-hand, as confirmed by the learned Special Prosecutor ANF and the Investigating Officer, petitioner retains no criminal record, so on the analogy of the dictum ibid, case of the petitioner stands on better footings.
12. Having assessed the material, collected by the prosecution tentatively , no substantive or even remote evidence/material is available on record which could suggest involvement of the petitioner in the commission of alleged offence and as laid down by the Hon'ble Apex Court, mere involvement on the basis of statement of co- accused retains no evidentiary value, petitioner retains no previous record and is running a merchant shop in Ganjmandi Bazar , has been able to make out a case for grant of post arrest bail as the liberty of an individual is constitutional right which could not be taken away lightly .
13. In view of above, instant bail petition is allowed , petitioner (Faiz Muhammad) is admitted to post-arrest bail subject to furnishing of bail bonds in the sum of Rs.2,00,000/- (Rupees two lakh) with one surety in the like amount to the satisfaction of the learned Trial Court.
14. Needless to mention that this is tentative assessment for the purpose of this petition only, which shall not affect/influence trial of this case in any manner .