2008 PLP 2598 (YLR)

MUHAMMAD ALAM KHAN, J.

Zarin son of Ahmad Gul, resident of Sam Baba Kajuri Bara, Khyber Agency, has moved this application for his bail under section 497, Cr.P.C. read with section 51 of the Control of Narcotic Substances Act.

2. Briefly narrated the facts of the case are that S.-I. Mumtaz Hussain of Police Station Anti-Narcotics Force Peshawar, received an information to the effect that some contrabands are being smuggled by Suzuki Motor Car No.IDS-9737 white colour on Mardan Nowshera Road. On this information he arranged for a picket with the police officials and Haroon -ur-Rashid Deputy Director ANF. In the meanwhile near Tool Plaza Noshwera Mardan, Car with the description noted above, came which was intercepted. Along with the driver, another person was also seated in the car. On inquiry the driver disclosed his name as Waheed-uz-Zaman son of Ali Laman, resident of servant quarter Wah Cantt:, while the person present on the front seat disclosed his name as Zarin son of Ahmad Gul, resident of Sam Baba Kajuri, Bara Khyber Agency. On search from the two front doors of the car four plastic bags were recovered which contained one kg heroin each. On weighment the total quantity was found to be four kgs. From every bag 5 grams heroin were separated and sealed in four parcels with proper stamps while the remaining was sealed in Parcel No.5. The accused was personally searched and four `purees' were recovered from the personal search of accused Zarin, which after weighing each 'puri' contained 50 grams and total recovery was 200 grams, which was separately sealed and consequently on the basis of this `murasila' F.I.R. No.59, dated 2-10-2007 was registered in Police Station ANF Peshawar.

3. The two accused-petitioners, namely, Waheed-uz-Zaman and Zarin submitted bail application to the Judge, Special Court Anti Narcotics, Peshawar, who vide his order, dated 2-1-2008, dismissed the bail application. Now only accused Zarin son of Ahmad Gul has come to this Court with a prayer for bail.

4. The learned counsel for the petitioner, namely, Noor Alam Khan, Advocate submitted written arguments, in which it was submitted that accused Zarin has been charged only for recovery of 200 grams of heroin, which falls under the provisions of section 9(b), C.N.S.A. and the punishment provided therein may ex-tend to 7 years which does not come within the prohibitory clause of section 497, Cr.P.C. It was further submitted that the petitioner has not been charged under any section of the C.N.S.A., which carries either capital punishment or punishment of imprisonment for life. In this respect reliance was placed by learned counsel on the cases Hakim Mumtaz Ahmad and others v. State PLD 2002 SC 590, Tariq Bashir and 5 others v. The State PLD 1995 SC 34, Mst. Fahmida v. State 1997 SCMR 947 and Gul Zaman v. State 1999 SCMR 1271.

5. Mr. Salahuddin, Deputy Attorney General on behalf of the State submitted that perusal of the F.I.R. reveals that initially four kilo grams heroin had been recovered from the possession of the petitioner, which has been duly mentioned in the F.I.R. and has been taken into possession by the complainant. Elaborating his arguments, he submitted that it was the personal search of Zarin, from whom four packets of heroin were recovered, which after weighment each packet was found 50 grams and thus total 200 grams have been recovered from personal search and the total recovery is 4 kgs and 200 grams and thus, he is not entitled to the concession of bail, as prayed for by the petitioner.

6. I have given my anxious consideration to the facts and circumstances of the instance case. It is on the record that the two accused were held up by the police on a prior information on Mardan Nowshera road, where the picket had been laid down from the car the said heroin had been recovered, the quantity of which exceeds ten grams and it attracts the provisions of section 9 of the C.N.S.A., which carries a sentence of imprisonment for life or in case the case is proved, then it can also involved capital sentence. The averments contained in the F.I.R. and the data available on the record show that reasonable grounds exist to believe that the petitioner has committed an offence punishable with death or transportation for life and the same is hit by the embargo contained in section 497, Cr.P.C. In view of the facts and circumstances of the case narrated above, there is no force in the instance application for bail of Zarin petitioner, which is rejected. H.B.T./137/P Bail refused.