FIAZ AHMAD ANJUM JANDRAN, J. Through instant petition under Section 497 Cr.P.C, petitioner (Ibadullah) seeks post-arrest bail in F.I.R No. 157, dated 06.03.2021, registered under Section 9-C of the Control of Narcotics Substances Act, 1997, ('Act of 1997') at Police Station Lohi-Bher , Islamabad.
2. According to the allegations set-forth in the F.I.R, on 06.03.2021, at about 09:05 pm, petitioner while in police custody in a case of possessing illicit arms, disclosed and got recovered three packets, two containing garda charas weighing 1000 gram each and one having heroin 500 gram from car No.LED-815 Toyota VITZ, Silver Colour , parked within the area of Hiran Maira Road, Islamabad.
3. Learned counsel for the petitioner contends that no recovery has been effected from personal search of the petitioner; that petitioner is neither the owner of the vehicle nor has any nexus with the same; that the story of apprehension of the petitioner and simulta neous recoveries, one under the Arms Ordinance and the second under the Act of 1997, at one and the same time is highly improbable and that petitioner retains no criminal record, therefore, entitled to the concession of bail. Learned counsel relied upon case law reported as 2021 SCMR 324 & PLD 2021 Lahore 105 .
4. Conversely , learned State Counsel contends that petitioner is not the owner of the vehicle, only key had been in his possession and that none of his belongings were recovered from it while the report of Chemical Examiner is positive.
5. Arguments heard, record perused.
6. Record has been evaluated and the Investigating Officer has specifically been questioned as to whether he investigated the matter qua connection of the vehicle with the petitioner , the answer was in negative. The Investigating Officer further stated that the vehicle, from which the contraband was allegedly recovered, did not belong to the petitioner . He further affirmed that no CNIC, mobile phone or any other item/document which could be considered as of the petitioner has been recovered from it.
7. Keeping in view the above stated position, the contents of F.I.R, the complaint and the recovery memo have been gone through whereby it emerges that nothing had been recovered from direct possession of the petitioner while there is no material which could be made basis to connect him with the vehicle from where allegedly contraband was recovered. In this view of the matter , case of further inquiry is made out.
8. The Hon'ble Apex Court in Criminal Appeal No.84 of 2021 out of Criminal Petition No.106 of 2021, titled Rafiq Ahmad v . The State and another , decided on 04.03.2021, has graciously held as under:- "After hearing the learned counsel for the petitioner and learned Special Prosecut or ANF at length and perusal of available record, it has been observed by us that as per contents of FIR a bus coming from Peshawar was stopped by the personnel of ANF; no contraband was recovered from the luggage of the passengers; driver of the bus (petitioner) was asked to open a box which was locked and when it was unlocked by the driver , narcotic wrapped in four packets was recovered from the said box of the bus; the driver on interrogati on disclosed that it was handed over to him by Qaiser Khan, Manager of Mardan Adda with a direction that owner of bus Sufi Niaz etc would receive the packets from him (petitione r-driver). Learned Special Prosecutor ANF under instructions of the investigating officer present with record has confirmed that during the course of investigation, nothing has come on surface as to the conscious possession of petitioner (driver of the bus) regarding the narcotic recovered from the box of the bus. In the circumstances, case against the petitioner calls for further enquiry falling within the ambit of section 497(2), Code of Criminal Procedure."
9. The case of the petitioner , if examined on the touchstone of the ratio ibid, guides to observe that nothing has come on surface as to the conscious possession of the petitioner regarding the narcotics recovered from the vehicle.
10. The investigation has already been completed and he is no more required for further probe. In such a situation, further incarceration of the petitioner would serve no useful purpose and the bail cannot be withheld as a punishment. In this respect reliance is placed upon "Manzoor and 4 others v. The State" (PLD 1972 SC 81) wherein the Hon'ble Apex Court held that:- "It is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reason able grounds appear to exist to disclose their complicity . The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run."
11. The petitioner retains no history of like nature offence and this fact has been testified by the State Counsel, therefore, being first of fender , his case for post arrest bail is made out.
12. In line with above discussion/findings, while making tentative assessment, it is held that the prosecution has not been able to bring on record anything to establish nexus of the petitioner with the vehicle from which narcotics was recovered, investigation to that extent is in corroboration of claim of the petitioner , no evidence is collected by the prosecution to show that petitioner was in conscious knowledge of the contraband in the vehicle, case for further inquiry into the guilt of the petitioner is, therefore, made out.
13. Consequently , for what has been discussed above, the instant bail petition is allowed , petitioner (Ibadullah) is admitted to post-arrest bail subject to furnishing bail bonds in the sum of Rs.200,000/- (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 .