' Feroz Shah petitioner, a student of 10th class and Mushtaq Ahmad co-accused stand involved in a case registered against them at Police Station Anti-Narcotic Force, Peshawar vide F.I.R. No,72, dated 11-9-2001 under section 9 of Control of Narcotic Substances Act, 1997. The petitioner has moved this application for the grant of bail before this Court on refusal of the same by the trial Court through impugned order, dated 27-10-2001.
2. The prosecution story in brief is that on receipt of a credible information that on 11-9-2001 at any time, large quantity of narcotic is likely to be transported/smuggled from Peshawar to Haripur in Motor Car bearing No,C-3816 Swat, complainant Shahzaman Khan, Excise and Taxation Officer, Peshawar alongwith he staff of Anti-Narcotic Force, Peshawar, conducted Nakabandi near Chamkani Mor G.T. Road, Peshawar. In the meanwhile a Motor Car No,C-3816 Swat was seen coming from Peshawar side. The car was stopped and on inquiry, driver of the car disclosed his name as Mushtaq Ahmad son of Sohrab, resident of Mauza Mirwas Jan Mardan and the person sitting with him introduced himself as Feroz Shah son of Abid Ali Khan, resident of Sikandari Koroona. Due to non-availability of necessary arrangements at the spot motor car and its occupants Mushtaq Ahmad and Feroz Shah were taken to Police Station Anti-Narcotic Force, Peshawar. The search of motor car led to the recovery of 19 packets of Charas concealed in its secret cavities. The Charas was weighed and it was found 98 kilograms. 200 grams were separated from the total quantity for the purpose of sending the same to the office of the Chemical Examiner, Peshawar for analysis. The report is still awaited. The petitioner and his companion were formally arrested and since then i,e, 11-9-2001 they are behind the bar.
3. Appearing on behalf of the petitioner, Mr. Noor Muhammad Khalil, Advocate contended forcefully that the petitioner had no hand in the commission of crime; that the petitioner was totally, unaware of the fact that Charas has been concealed in the secret cavities of the vehicle; that co- accused in his confessional statement recorded on 17-9-2001 has totally absolved the petitioner of the liability that despite prior information no independent and disinterested witness from the locality has been associated with the recovery proceedings as required under section 103, Cr.P.C.
And thus the recovery is doubtful and that case of the petitioner is open to further inquiry to determine his guilt within the purview of subsection (2) of section 497, Cr.P.C. Additionally, it has been submitted that the petitioner is a young boy of tender age and he is not a previous convict and that the report of the Chemical Examiner has not been obtained so far and this fact alone constitutes a valid ground for grant of bail. To substantiate the pleas, reliance has been placed on Riaz Ahmad v. The State 1988 M LD 1730; Muhammad Ashraf v. The State 2000 PCr.LJ 917; Gul Hassan Dero v. The State 2000 PCr.LJ 657 and Nauroz Khan alias Tour v. The State 2000 PCr.LJ 1222.
4. On the contrary Mr. Muhammad Tariq Tarer, Advocate learned Standing Counsel for Anti- Narcotic Force, has opposed the application in hand maintaining that prosecution is in possession of sufficient material to connect the petitioner with the guilt and that as challan has already been submitted in Court and the trial is likely to commence, the petitioner is not entitled for the grant of bail. To substantiate the arguments, he placed reliance on Fazlur Rehman v. The State 2001 M LD 1922, Shadi Khan v. The State 2002 PCr.LJ 320 and Nazar Hussain v. The State 2002 PCr.LJ 440.
5. It has been repeatedly held by the superior Courts that persons allegedly involved in spreading narcotics in society and tarnishing the image of their country in the comity of nations, are not the kind of the persons who are worthy of grant of any discretionary relief to, them unless they could demonstrate that no reasonable grounds existed to believe that such an accused person was guilty of the offences alleged, which is not the situation in the present case. It is a settled principle of law that police officials were competent witnesses in the eye of law and unless it could be demonstrated that the police officials in question had any motive or reason to falsely implicate an accused person, their testimony could not be discarded only because they happened to be employees of Police Department. The submission of the learned counsel for the petitioner regarding non-compliance of the mandatory provisions of section 103, Cr.P.C. Is without force because the recovery has been made in terms of section 25 of Control of Narcotic Substances Act, 1997 which totally excludes applicability of section 103, Cr.P.C. The learned counsel has remained unable to show any background of bitterness or ill-will between the petitioner and the police officials so as to prompt the latter to falsely implicate the petitioner in a case of this nature. Fida Jan v. The State 2001 SCM R 36, Shahid Baloch v. The State 1998 PCr.LJ 1628 and Fazlur Rehman v.
The State 2001 M LD 1922.
6. Claiming bail for the petitioner on account of present non-availability of any report of the Chemical Examiner regarding the substance allegedly recovered from the vehicle in question, cannot be considered a good ground for grant of bail as held in Nazar Hussain v. The State 2002 PCr.LJ 440.
7. It is true that the petitioner has been in custody ever since his arrest on 11-9-2001 but it is equally true that such a term of period does not qualify the petitioner to be released on bail as held in Muhammad Ilyas v. The State 2000 MLD 1983.
8. It has been vehemently contended by learned counsel for the petitioner that accusation brought against the petitioner requires further probe into the matter and as such, he has made out a good case for grant of bail. The submission of the learned counsel is not tenable. As regards the question of further probe and inquiry into the petitioner's guilt, suffice it to observe that there is some scope for further inquiry qua the guilt of an accused in every criminal case. On this consideration alone, bail cannot be claimed by an accused as a matter of right. It must be further shown that there are no reasonable grounds for believing that the accused has committed the offence alleged against him. Mere possibility of further inquiry which exists almost in every criminal case, is no ground for treating the matter as one under subsection (2) of section 497, Cr.P.C. Asmatullah Khan v. Bazi Khan and another PLD 1988 SC 621, Najib Gul v. Khalid Khan and another 1989 SCM R 899 and Mst.
Resham Jan v. Abdur Rehman 1991 SCM R 1849.
9. Bail is some times refused in a criminal case if the trial of such case has commenced but such refusal proceeds on the principle of practice and propriety. It is not denied that whenever a question of propriety is confronted with a question to right, the latter must prevail as held in PLD 1989 SC 585, Muhammad Ismail v. Muhammad Rafiq and others. Commencement of a trial poses no' insurmountable hurdle in the way of bail provided the accused person succeeds in making out a case of further inquiry into his guilt within the meanings of subsection (2) of section 497, Cr.P.C. In this case as huge quantity of Charas has been recovered from the motor car in question in which the petitioner was accompanying the driver namely Mushtaq Ahmad co-accused and confessional statement of co-accused, exonerating the petitioner from the commission of crime cannot be taken into account at this stage 1 am of the view that the petitioner is not entitled for the concession of bail.
10. It is settled principle of law that at the bail granting stage the material available on the record is to be sifted through in order to establish whether prima facie the petitioner before the Court can be connected to the crime in question and hence no detailed inquiry is to be conducted by the Court.
The tentative assessm ent of the evidence in the hand of prosecution would prima facie show that there are reasonable grounds to believe that the petitioner has committed the crime with which he is being charged and would not be entitled to the concession of bail by virtue of subsection (2) of section 497, Cr.P.C.
11. In the wake of above discussion I find that the learned trial Judge has properly exercised discretion in refusing bail to the petitioner. The application fails which is hereby dismissed.
12. Needless to add here that the observations made above are tentative in nature and the trial Judge shall decide the case on the basis of the material produced before him, at the trial.