2023 PLP 32 (MLD)

S M ATTIQUE SHAH, J.

Through instant bail petition, petitioner Muhammad Sadiq alias Sadiq seeks his release on bail in case FIR No. 220 dated 14.07.2021 registered under sections 9-D/13, Khyber Pakhtunkhwa CNSA, 2019, P.P.C., at Police Station Jamrud, District Khyber; wherein he is charged for having in possession of five packets heroin (total weighing 5000 grams) as well as chemical weighing 5000 grams; allegedly recovered by local police during raid at the house of petitioner in his presence.

2. I have heard learned counsel for petitioner, learned AAG for the State and gone through the record.

3. Scanning of record reveals that allegedly a raid was conducted on the house of petitioner by local police; which led to the recovery of 5000 grams heroin from possession of petitioner; as well as chemical weighing 5000 grams lying in a mixer bucket, at courtyard of the said house; but neither any search warrant under section 27, Khyber Pakhtunkhwa CNSA, 2019 was obtained nor any lady constable was accompanied by raiding party at the time of raid on the house of petitioner; which is clear violation of provision of subsection (1) of section 27, Khyber Pakhtunkhwa CNSA, 2019. Moreover, no independent witness has been associated by local police at the time of raid on the said house, which is mandatory under section 31 of the Act ibid. As per contents of FIR, the information was brought into the notice of high-ups by local police but there is nothing in black and white; which could confirm the version of prosecution qua information to the high-ups of police. No other family member of petitioner has been arrested during raid of the house nor shown present at relevant time, making it a case of further inquiry under section 497(2), Cr.P.C.

4. Apart from above, no document qua ownership of the house is available on file; which could suggest that the said house was ownership of petitioner. Besides, when petitioner was produced before the learned Judicial Magistrate concerned, on 4.8.2021, he recorded his statement under section 164, Cr.P.C.; wherein he stated that he was owing an amount of Rs.40,000/- against complainant qua purchase of a shot gun from the shop of petitioner and; on demand of money, petitioner was falsely implicated by complainant in the instant case; which makes the instant case of two versions and; it would be determined during trial that which of the version is correct. Moreover, there is nothing on record qua previous conviction or involvement of petitioner in such like offences, which could suggest that petitioner is a habitual offender, repeating the same offence. Despite remaining in police custody neither any further recovery of incriminating article has been recovered from his possession nor he made any confession before the competent Court; who is behind the bars since his arrest and no more required to the Investigation Agency for further interrogation; therefore, this bail petition is allowed and petitioner is admitted to bail subject to furnishing bail bonds in the sum of Rs.100,000/- (One lac) with two sureties each in the like amount to the satisfaction of learned Illaqa/Duty Judicial Magistrate/trial Court concerned, who shall ensure that the sureties are local, reliable and men of means. The ibid observations are the tentative assessment of the material available on the record of the case, which shall not influence the mind of the learned trial Court in any manner at the time of trial. The above are reasons of my short order of even date. SA/274/P Bail granted.