2026 PLP 262 (MLD)

Jahanzeb Khan, J.

Following the dismissal of bail petition for grant of post arrest bail, by the learned Special Judge CNSA/Sessions Judge Diamer vide order dated 05.06.2025 passed in B.A No.07/2025, the accused/petitioner named supra, has approached this Court through the instant petition for the same relief.

2. Compendiously, the facts forming the factual canvas of the instant bail petition as per contents of the FIR are that: "On 18-04-2025, SHO City Police Station Chilas was on duty with other police officials near Takiya Chilas. He received secret information that the accused/petitioner is selling Charas (hashish). The SHO along with the police team reached the spot. They saw a person standing with suspicious movements. On seeing the police, the accused tried to run away but was caught red-handed. Upon general body search, the police recovered one unlicensed .30-bore pistol, 45 live rounds and 1 kilogram of Charas (1000 grams from the immediate possession of the accused.)"

3. The accused/petitioner initially filed a bail application No.07/2025 under section 497, Cr.P.C before the learned Sessions Judge/Special Judge CNSA Diamer, which was dismissed after hearing contention/arguments of both the parties, for the reason that the alleged offence falls with the prohibitory clause of section 497, Cr.P.C. Hence this petition. Learned counsel for the accused/petitioner Mr. Sadatullah argued that the local police have raided the place of occurrence on spy information. In a case where the raid is carried out on spy information, it is necessary to associate private witness during recovery proceedings and shelter of Section 25 of CNSA cannot be extended in every case. Learned counsel further argued that the officials/police take shelter of section 25 CNSA and consider the police officials as reliable and competent witnesses. Although the same consideration has not been accepted by the Superior Court in several landmarked judgments. In the instant case the local police have not associated the independent witnesses during the recovery proceedings in violation of section 103, Cr.P.C. Learned counsel further argued that the alleged 1000 grams of chars has been weighed along with packing material, i.e, polythene bag if separated the alleged offence falls under section 9(B), CNSA and the same is a border line case. He further argued that the challan and case record is silent about the remaining contraband, where the remaining contraband has been kept or about the safe custody or the same. Learned counsel further submitted that accused/petitioner is innocent and the FIR has been lodged against the accused/petitioner malafidely with malevolent intention to implicate him in the instant case. As per the contents of the FIR the alleged recovery has been affected in the broad-day-light but no independent ocular evidence is available on record to connect the petitioner/ accused with the commission of alleged offence. He further argued that even the police officials have not used their mobile phones cameras to record or take photographs of the search, seizure and arrest proceedings, it would be a useful evidence in their favor but they have failed to do so. The learned counsel further contended that incomplete challan has been submitted before the trial court and the FSL report has not yet been received and the petitioner/accused is no more required for further investigation. Hence, keeping the accused/petitioners behind the bars would serve no fruitful purpose. Concluding his arguments, the learned counsel submitted that the petitioner/accused will never abuse or misuse the bail facility if this Honourable Court releases him on bail by accepting this petition. Learned counsel placed his reliance on the judgments of the Gilgit-Baltistan Chief Court in a matter bearing criminal case Nos. 75/2025 and 86/2025. With these submissions they prayed for acceptance of the instant petition to meet the ends of justice.

4. On the other hand, the learned Deputy Advocate General Mr. Khush Rehman, opposed this petition by contending that a huge quantity of chars, i.e, 1000g has been recovered from the immediate possession of accused/petitioner. He submitted that the petitioner/accused is directly nominated in the promptly lodged FIR and has been caught red-handed in presence of eye-witnesses, the prosecution has no animosity with the accused/petitioner to drag him in the instant case. Learned Deputy Advocate General argued that the offence is non-bailable and falls within the ambit of prohibitory clause of section 497, Cr.P.C. Lastly, learned Deputy Advocate General argued that prima facie prosecution has sufficient evidence on record to connect the accused/petitioner with the commission of offence. With these submissions, he prayed for dismissal of this bail petition being non-maintainable.

5. We have considered the arguments advanced by the learned counsel for the parties with due care and perused the available record.

6. Tentative assessment of the record of the case transpires that the alleged incident has taken place during the day time in a town area and the petitioner/accused has been arrested on the spot but again it is very painfully observed that I.O of the ase as usual did not bother to associate a single Private/independent person as witness in the recovery proceedings. We are aware that the provisions of section 103, Cr.P.C, which requires two or more respectable inhabitants of the locality to be associated when search is made, have been excluded by virtue of section 25 of CNSA, 1997, but this waiver cannot be made an excuse in each and every case. Where a raid is conducted or an accused is arrested in busy hours of broad day light in a busy market place on the spy information, the none association of independent witnesses will tilt against the prosecution. It is pertinent to mention here that no independent private witness has been associated as usual by the police on the pretext that private persons remain reluctant and avoid to become witness due to fear and apprehension of litigation inspite of that we are once again failed to understand why the police officials do not make any effort or attempt to use their mobile phone cameras to record or take photographs when the alleged search, seizure and arrest was made by the police specially in such nature of cases. Article 164 of QSO specifically permits the use of any evidence that may have become available because of modern devices or technologies and it would be a useful evidence to establish and strengthen the prosecution case. It may also prevent false allegations being levelled against the Police that the narcotics substance was twisted upon them for some ulterior motives. Undoubtedly, the drug dealers/sellers make their buyers addicts, destroy their state of mind, health and productivity and adversely affect the lives of their families, resultantly the very fabric of society is damaged. The Police Forces are paid out of public exchequer to perform their respective duties with full zeal and zest. It is the prime duty of the police to throw up this societal ill/monster/menace from its roots by using their excellent professional legal skills by using latest available modes and manners of investigations such as making a recording or taking photographs as stated above. It is time that all institutions act professionally and use all available lawful manners to obtain evidence. A credible prosecution and adjudication process also improves public confidence and perception on the concerned institution.

7. Presumably, the police might have weighed the alleged contraband with polythene packing wrapped or in which contraband was allegedly kept, and if the recovered chars was weighed separately and without the polythene packing it would definitely be less than in weight or quantity mentioned in the FIR. Shockingly no record is available on the case file regarding deposit of contraband in malkhana, no roznamcha entry exists on the prosecution record about handing over the case property to malkhana incharge. No statement in this connection of malkhana incharge was recorded by the I.O of the case. Mentioning of time is rather necessary regarding deposit of case property in malkhana and thereafter, when it was removed for its transmission to chemical examination to any laboratory or expert, surprisingly no any record was also available with the police regarding transmission of alleged recovered contraband to the FSL for the purpose of obtaining its expert report/opinion. When the learned law officer of the State, i.e, Deputy Advocate General is confronted to resolve the controversy, the Law Officer/Deputy Advocate General miserably failed to show any authentic and credible record or document which could indicate that the alleged recovered contraband has been kept in safe legal custody and thereafter, transmitted to the Forensic Science Laboratory for obtaining its expert opinion by following the required legal mandatory protocols and procedures. The prosecution is required to meticulously establish each and every tep in the process, starting from the recovery of the narcotics substance to the preparation of sample parcels, ensuring their safe custody and secure transmission to the relevant laboratory, such mandatory legal procedure and protocol chain must be connected firmly without any breach and beyond any doubt. Conduct of police showed that the investigation had been carried out in a very casual and stereotype manner without making an effort to discover the actual facts/truths. This conduct of police would give shelter and definitely would favor the accused even limited purpose of bail. It can easily be inferred that the prosecution has failed to show that if the polythene packing of charas was separated then what would be the net weight of the alleged recovered charas and this fact also makes the instant case one of further inquiry falling within the purview of section 497(2), Cr.P.C.

8. As far as offence under section 13 AO is concerned, otherwise too, it is a bailable offence, unfortunately same method of recovery during the alleged recovery of weapon of offence, was opted and preferred by the police as used while recovering the alleged contraband in the case in hand, therefore same will be treated equally and will face the same fate.

9. In the wake of above, we accept this petition and the accused/ petitioner is admitted to bail.

10. These are the reasons of out short order dated even, which reads as under; "For reason to be recorded later, which shall follow soon, the instant bail petition under section 9-C CNSA and 13 AO vide FIR No. 33/2025 registered at Police Station City Chilas District Diamer, is allowed. The accused/petitioner is admitted to bail subject to his furnishing of bail bonds of Rs. 500,000/- (five lac) with two local solvent sureties of like amount to the satisfaction of trial court. The accused/petitioner be released from custody forthwith if he is not required in any other case."

11. The observations made hereinabove are tentative in nature, which shall not prejudice trial of the case and the learned trial court is directed to decide the case strictly on merits in accordance with law. File. JK/31/GB Petition allowed.