3/1/24, 7:26 AM 2017 S C M R 531

2017 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.

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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.

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