2009 S C M R954

[Supreme Court of Pakistan]

Present: Abdul Hameed Dogar, C. J., Ijaz-ul-HassanKhan and Ch. Ejaz Yousaf, JJ

MUHAMMAD ULLAH—-Petitioner

Versus

THE STATE—-Respondent

Criminal Petition No.352 of 2008, decided on 14thNovember, 2008.

(On appeal from the judgment, dated 22-9-2008 of thePeshawar High Court, D.I. Khan Bench passed in Criminal Miscellaneous No. 119of 2008).

Criminal Procedure Code (V of 1898)—

—-S. 497—Control of Narcotic Substances Act (XXVof 1997), S.9(c)—Constitution of Pakistan (1973), Art.185(3)—Bail, grantof–Contrabands were not recovered directly from the possession of accused,rather the same were recovered from the cabin made on the root of theBus—Question whether said cabin was in the exclusive use of the driver or forthe passengers being a factual controversy, could not be resolved in a bailpetition—Case of accused, thus, was of further inquiry–Accused was admittedto hail accordingly.

Mian Muhibullah Kakakhel, Senior Advocate SupremeCourt and Mrs. Tehmina Muhibullah, Advocate Supreme Court for Petitioner.

Ms. Naheeda Mehboob Ellahi, D.A.-G. and Sh. Riazul Haque,Prosecutor-General, ANF for the State.

Date of hearing: 14th November, 2008.

ORDER

ABDUL HAMEED DOGAR, C.J.—This petition forleave to appeal is filed against judgment dated 22-9-2008 passed by learnedJudge In Chambers of Peshawar High Court, Peshawar whereby CriminalMiscellaneous.No.119 of 2008 filed by petitioner was dismissed and he wasdeclined concession of bail.

2. Briefly stated facts are that on spy informationthat narcotics is being smuggled in Bus No.DR-9711 from Mardan to Karachicomplainant Rahat Ali Shah, S.H.O. Police Station ANF, D.I. Khan blockedDera-Bannu Road near CRBC. When the above mentioned bus reached there it wasstopped and from its roof, beneath the bed in the driver’s cabin a red colouredplastic bag was recovered in which five plastic envelopes wrapped in yellowcolour solution tape containing opium weighing nine kilograms were found. Tengrams from each packet were separated for chemical analysis while the remainingwere sealed. On inquiry the driver disclosed his name as Muhammadullah whilethe person sitting rear him as Ehsanullah and the person sitting on thecleaner’s seat as Adnan. After usual investigation all the above named threewere arrested and sent up to face trial.

3. Feeling aggrieved all the accused filedapplication for bail before learned Peshawar High Court, D.I. Khan Bench whichwas allowed to the extent of co-accused Adnan and Ihsanullah on the ground ofbeing juvenile whereas application for petitioner was dismissed as slatedabove.

4. It is vehemently contended by learned counsel forthe petitioner that petitioner was driver of the bus and the contrabands werenot recovered directly from his possession rather it was recovered from thecabin made on the roof. According to him, though there were so many passengersin the bus but none was cited as witness. He further contended that bus wascoming from Mardan whereas petitioner boarded in it from Nowshera and occupieddriving scat and had not knowledge about the contrabands lying in the cabin. Hecontended that petitioner has been involved in this case only on suspicions andsurmises which makes it a case of further inquiry.

5. On the other hand Sh. Riazul Haq, learned SpecialProsecutor ANF supported impugned judgment and contended that the cabin fromwhere the contrabands were recovered was in the exclusive use of petitioner assuch it cannot be held that he has no knowledge about it.

6. We have considered the arguments of learnedcounsel for the parties and have gone through the material produced on record.Admittedly the contrabands were not recovered directly from the possession ofthe petitioner rather it was recovered from the cabin made on the roof. Thequestion whether the cabin on the roof of the bus was in the exclusive use ofdriver or for the passengers cannot be decided here as it is a factualcontroversy which cannot be resolved in a bail petition. Therefore, we are ofconsidered view that case of the petitioner is of further inquiry. Accordingly,this petition is converted into appeal and is allowed.

7. These are the reasons of our short order of evendate.

N.H.Q./M-34/SC Bailallowed.