ScriptScript2017 S C M R 531

[Supreme Court of Pakistan]

Present: Dost Muhammad Khan, Qazi Faez Isa and Faisal Arab, JJ

JAVED---Petitioner

Versus

The STATE---Respondent

Criminal Petition No. 1333 of 2016, decided on 31st January, 2017.

(On appeal against the order dated 2.12.2016 passed by the Peshawar High Court, Peshawar in Cr. Misc.
B.A. No. 2746-P of 2016)

Criminal Procedure Code (V of 1898)---

----S. 497--- Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of narcotics---Bail,
grant of---Accused suffering from physical disability---Allegation against accused was that he was
present with the principal accused in a car, which contained 35 kilograms of narcotic (charas)---Accused
was a crippled person who had suffered from polio virus and both his legs were not normal---Concession
could be granted to an accused who was disabled---Presently there was no clear evidence/material to
reasonably establish the connection of the accused with the principal accused, who was still at large and
who was in exclusive control of the car, being its owner, and to whom knowledge of the presence of the
narcotics could be conveniently attributed---Prosecution could lead evidence at trial to reasonably connect
the accused with the constructive knowledge about the presence of the narcotics in the car but on the
available record it was not a case where bail could be justifiably refused---Accused was granted bail
accordingly.

Arshad Hussain Yousafzai, Advocate Supreme Court and Syed Rifaqat Hussain Shah, Advocate-on-
Record for Petitioner.

Zahid Yousaf Qureshi, Advocate Supreme Court and Malik Taj, S.I./I.O. for the State.

            Date of hearing: 31st January, 2017.

ORDER

            DOST MUHAMMAD KHAN, J.---Petitioner is seeking leave to appeal against the order of the
Peshawar High Court, Peshawar dated 02.12.2016 in case FIR No. 857 dated 14.10.2016 registered for
crime under section 9(c) of the Control of Narcotic Substances Act, 1997 by the Police Station University
Town, Peshawar.

2.         According to the prosecution record itself and after making extensive queries from the
Investigating Officer present in Court, the only fact on record available is that the petitioner was present
with the principal accused in the car, from the secret cavities of which and the CNG tank fixed in the boot
of the car, narcotics (charas) weighing 35 kilogram was recovered.

3.         It has also come on record that the petitioner is a crippled person as he has suffered from polio
virus and his both legs were not normal rather he was disabled.

4.         At present there is no clear evidence/material to reasonably establish the connection of the
petitioner with the principal accused, who is still at large and who was in exclusive control of the car
being its owner and to whom knowledge of the presence of the narcotics can be conveniently attributed.

5.         Let the prosecution lead some evidence at the trial to reasonably connect the petitioner with the
constructive knowledge about the presence of the narcotics in the car but on the available record it is not a
case where bail can be justifiably refused, more particular when the petitioner is a disabled person and
somewhat concession can be extended to him on this ground as well. Accordingly, this petition is
converted into appeal and allowed and the impugned order is set aside. The petitioner is granted bail in
the sum of Rs.300,000/- with two reliable sureties to the satisfaction of the learned Trial Court.

MWA/J-2/SC                                                                                                  Bail granted.