2026 Y L R 557
[Balochistan]
Before Iqbal Ahmed Kasi and Muhammad Najam -ud-Din Mengal, JJ
BAKHTAWAR---Applicant
Versus
The STATE---Respondent
Criminal Bail Application No. 129 of 2025, decided on 13th October, 2025.
(a) Criminal Procedure Code (V of 1898) ---
----S.497---Control of Narcotic Substances Act (XXV of 1997) [as amended by Control of
Narcotic Substances (Amendment) Act (XX of 2022)], S.9(1), Sr. No. (3)(c) ---Possession
and transportation of narcotic substances ---Bail grant of ---Further inquiry---Prosecution case
was that two slabs of charas weighing 2040 grams was recovered from the possession of the accused -applicant ---Record transpired that the raiding team had failed to record recovery
process on video despite receiving prior information regarding the applicant (accused) being companion of another culprit from whose possession contraband was recovered on the said date of incident ---Even otherwise, Art. 164 of Qanun- e-Shahadat, 1984, specifically permitted
the usage of modern devices ---Admittedly, the investigation had already been completed by
submitting the challan and other incriminatory evidence in the Trial Court, meaning there probe or interrogation--- Even otherwise, the recovery of contraband from the exclusive and
conscious possession of the applicant (accused) was yet to be established during trail, which required recording of complete evidence, as such, till then the case of applicant (accused) fell within the ambit of further inquiry ---When a case of further inquiry is made out, the
concession of bail can be extended in favour of accused person, as a matter of right ---Bail
petition was allowed, in circumstances.
Zahid Sarafraz Gill v. The State 2024 SCMR 934 and Muhammad Abid Hussain v. The State 2025 SCMR 721 rel.
(b) Criminal Procedure Code (V of 1898) ---
----S.497--- Bail order ---Observations of the Court ---Scope ---Observations made in bail
order are tentative in nature and same shall not influence the merits of the case at the trial.
Iftikhar Ahmed Sawati for Applicant.
Ameer Hamza Mengal, Additional P.G. for the State.
Date of hearing: 30th September, 2025.
ORDER
MUHAMMAD NAJAM -UD-DIN MENGAL, J .---This order disposes of Criminal
Bail Application No.129 of 2025, whereby the applicant (accused) Bakhtawar daughter of
Waheed wife of Ashraf, is seeking bail after arrest in case FIR No.314 of 2025 dated 6th September 2025, Police Station Kharootabad, District Quetta under Section 9(1) 3- C of
CNS Act, 2022.
2. Concise facts of the bail application are that on 6th September 2025 the complainant
namely Allah Nawaz, SI/ASHO lodged the instant crime with Police Station Kharootabad,
Quetta alleging therein that on the said date he along with other police personnel was on the duty of routine patrolling of the area, during the course whereof, received a secret information that a person namely, Ashiq from whose possession a huge quantity of narcotics were recovered, he was accompanied with a lady having two children w ith herself
is presently present at Jable -Noor Chowk and is in possession of contraband. Pursuant to
such information, they conducted raid at the said place at about 08:15 p.m. and on the
pointaiton of spy they apprehended the lady. On query, she disclosed her name as Bakhtawar daughter of Abdul Waheed, wife of Ashraf. Her personal search was conducted, which resulted into recovery of two slabs of charas, cach slab was weighing 1020 grams,
total weighing 2040.
2.(sic) After registration of FIR, the applicant (accused) was investigated and on
completion thereof, she was remanded to judicial custody. In the meanwhile, the applicant
(accused) filed an application for grant of bail in the Court of learned Special Judge, CNS/Additional Sessions Judge -II/MCTC -I, Quetta ("trial Court"). which was rejected,
vide order dated 13th September 2025. Whereafter, instant application has been filed.
3. Learned counsel for the applicant (accused) contended that the applicant (accused)
is innocent having no concern with the alleged recovered contraband rather she was involved with mala fide intentions; that the applicant (accused) does not know the so -called
culprit namely Ashiq, while she is daughter of Abdul Waheed and wife of Ashraf, that the raiding team of police has failed to record the entire recovery proceedings through videography as they have allegedly received a secret information prior to the arrest of applicant (accused), finally he placed reliance on the latest reported citations of the Hon'ble Supreme Court of Pakistan and prayed for grant of bail to the applicant (accused).
4. Learned Additional Prosecutor General, vehemenly controverted the arguments so
advanced by the learned counsel for the applicant (accused) and contended that the
applicant (accused) was accompanied by the co -accused namely Ashiq, but at the time of
arrest of said culprit, she was succeeded to escape from the occurrence, hence he finally
urged for rejection of instant bail application.
5. Heard the learned counsel and perused the available record. At bail stage, the Court
has to form its opinion tentatively on the basis of available record and deeper appreciation of record/evidence would effect the merits of the case. Perusal of record reveals that the complainant received spy information that the applicant (accused) having two children was accompanying Ashiq from whose possession contraband was recovered on the said date, as such, the applicant (accused) is also having a huge quantity of narcotics in her possession. Pursuant to such, information, the police party conducted a raid at about 08:15 p.m. at Jabbal e Noor Ada Chowk and arrested the applicant (accused), whose search was conducted which resulted into recovery of two slabs of charas each slab weighing 1020/1020 grams.
6. The tentative scrutiny of the available record transpires that the raiding team has
failed to record recovery process on video despite receiving prior information regarding the applicant (accused) being companion of another culprit namely Ashiq from whose possession contraband was recovered on the said date of incident. Admittedly, it is persistent view of the Hon'ble Supreme Court of Pakistan in respect of recording the recovery process through modern devices and techniques, even otherwise, when the Article 164 of the Qanun- e-Shahadat Order, 1984 specifically permitted the usage of modern
devices, reliance in this regard can be placed on the judgment of Hon'ble August Court reported in the case titled as "Zahid Sarafraz Gil v. The State, (2024 SCMR 934)", wherein it was held as under:
“5. We are aware that section 25 of the Act excludes the applicability of section 103
of the Code of Criminal Procedure, 1898 which requires two or more respectable inhabitants of the locality to be associated when search is made. However, we fail to understand why the police and members of the Anti -Narcotics Force ('ANF') do not record
or photograph when search, seizure and/or arrest is made. Article 164 of the Qanun -e-
Shahadat, 1984 specifically permits the use of any evidence that may have become available because of modern devices or techniques, and its Article 165 overrides all other laws.
6. In narcotic cases the prosecution witnesses usually are ANF personnel or
policemen who surely would have a cell phone with an in- built camera. In respect of those
arrested with narcotic substances generally there are only a few witnesses, and most, if not
all, are government servants. However, trials are unnecessarily delayed, and resultantly the
accused seek bail first in the trial court which if not granted to them is then filed in the High Court and there too if it is declined, petitions seeking bail are then filed in this Court. If the police and ANF were to use their mobile phone cameras to record and/or take photographs of the search, seizure and arrest, it would be useful evidence to establish the
presence of the accused at the crime scene, the possession by the accused of the narcotic
substances, the search and its seizure. It may also prevent false allegations being levelled
against ANF/police that the narcotic substance was foisted upon them for some ulterior motives.
7. Those selling narcotic substances make their buyers addicts, destroy their state of
mind, health and productivity, and adversely affect the lives of their family members. The very fabric of society is damaged ANF and the Police forces are paid out of the public exchequer. It is incumbent upon them to stem this societal ill. The Prosecution services, paid out of the public exchequer, is also not advising the ANF/police to be do this simple act of making a recording and/or taking photographs as stated above."
7. Similarly, the Hon'ble apex Court has also emphasised upon utilizing the modern
techniques by recording the video footage of the recovery proceedings in its latest reported judgment in case of "Muhammad Abid Hussain v. The State, 2025 SCMR 721)" for facilitation the relevant portion whereof is hereinbelow:
“5. At the very outset, it would be relevant to state that the Act of 1997 prescribes
severe punishments for the possession and sale of narcotic substances. Given the gravity of
the penalties, the standard of proof required to establish guilt must be correspondingly
high. The prosecution must demonstrate beyond reasonable doubt that the petitioner was in
possession of narcotic substance and that it was intended for sale. Article 164 of Qanun -e-
Shahadat Order, 1984 emphasizes the importance of modern devices and techniques in the
collection of evidence. It provides that evidence obtained through modern devices, such as
video recordings, should be given due weight in judicial proceedings. This provision
underscores the need for law enforcing agencies to adopt contemporary methods to ensure the accuracy and reliability of evidence. In this regard, in a criminal case titled Zahid Sarfaraz Gill v. State (2024 SCMR 934), this Court had granted bail after arrest to an accused carrying 1833 grams of charas which, as per the table in section 9(1) of the Act of 1997, comes under clause (c) of its third category and prescribes a minimum imprisonment of nine years and a maximum of fourteen years and fine, on the ground that why the police and members of the Anti -Narcotics Force do not record or take photographs when search,
seizure and/or arrest is made. Article 164 of the Order, 1984 specially permits the use of any evidence that may have become available because of modern devices or techniques, and its Article 165 overrides all other laws. This Court had sent the copy of the order ibid to the Secretary, Ministry of Narcotics Control, Government of Pakistan. Director General Anti -Narcotics Force, the Secretaries of the Home Departments of all Provinces, Inspector
Generals of Police of all the provinces and of the Islamabad Capital Territory to consider whether they want to amend the ANF/Police rules to ensure making video recordings/taking photographs whenever possible with regard to capturing, preserving and using such evidence at trial.
6. In the present case neither any video in the shape of recording and photographs of
the alleged recovery has been collected by the police nor any private witness from the locality was associated to prove the alleged recovery from the possession of the petitioner. As stated above, the use of modern devices during recoveries is not merely a procedural formality but a crucial safeguard to protect innocent persons from potential police atrocities It provides an objective and unbiased account of the recovery process, reducing the risk of false implications and ensuring that the rights of the accused are protected. In the cases of stringent punishments, the prosecution must present clear, cogent and reliable evidence to prove the occused's guilt beyond a reasonable doubt. In the absence of video evidence and independent witnesses, the prosecution's case relies heavily on the testimony of the police officers involved in the raid, which is insufficient to meet the required standard of proof.”
8. Admittedly, the investigation has already been completed by 10 submitting the
challan and other incriminatory evidence in the trial Court, meaning thereby that the
applicant (accused) is no more required for further probe or interrogation. Even otherwise,
the recovery of contraband from the exclusive and conscious possession of the applicant (accused) is yet to be established during trial, which requires recording of complete evidence, as such, till then the case of applicant (accused) falls within the ambit of further inquiry.
9. It is well settled principle of law that when a case of further inquiry is made out, the
concession of bail can be extended in favour of accused person, as a matter of right, this
Court also cannot elaborate the shifting of evidence, but make a tentative assessment of material laid before this Court, at this stage an inquiry by this Court is permissible to seek answer to the question of involvement of applicant without going into the deeper appreciation of evidence. Thus, the learned counsel for the applicant (accused) has succeeded in making out a case for grant of bail in favour of applicant (accused).
For the above reasons, the application is allowed and the applicant (accused)
Bakhtawar daughter of Waheed wife of Ashraf, is ordered to be released on bail subject to furnishing Fardi surety in the sum of Rs.300,000/ - (Rupees Three Hundred Thousand), with
P.R. bond of the like amount to the satisfaction of trial Court or Additional Registrar of this Court.
The observation made hereinabove are tentative in nature, and same shall not
influence the merits of the case at the trial.
JK/136/Bal. Application allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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