2001 PLP 1922 (MLD)

Muhammad Ayub Khan, Dy. A.-G. for the State. Date of hearing: 25th June, 2001. Fazal-ul-Rehman son of Abdur Rehman resident of Deh Balyani, District Mansehra, has been arrested in a case registered at Police Station Ghari Habibullah at the instance of S.H.O., Tariq Mehmood, under section 9 of Control of Narcotic Substances Act, 1997 vide F.I.R. NoA1 dated 11-3-2001.

2. The prosecution story in brief is that on the day of occurrence, i.e. 11-3-2001 at about 7 a.m., a police party headed by S.H.O. Tariq Mehmood Khan, was on a round of the area, when they found a person in a suspicious condition. On seeing the police party the person started running in order to foil the attempt of the police party to apprehend him. However, he was apprehended and overpowered by Mehboob D.F.C. and on personal search 1040 grams of Charas contained in shopping bag was recovered from him. The contraband was taken into possession and a recovery memo. of this effect was prepared at the spot. 4 grams of Charas out of the recovered quantity was separated and despatched the same day to Chemical Examiner Peshawar for opinion and report. On inquiry the said person disclosed his name as Fazal-ul-Rehman alias Fazla son of Abdur Rehman of Deh Balyant District Mansehra.

3. The petitioner submitted an application in the Court of Additional Sessions Judge/Special Judge, Mansehra for grant of bail, who by virtue of his order, dated 14-4-2001 declined the said relief on the basis of multi farious reasons embodied there is the order itself. The petitioner has approached this Court the similar prayer.

4. Mr. Muzaffar Khan, Advocate appeared on behalf of the petitioner whereas Mr. Muhammad Ayub, Deputy Advocate-General represented the State. I have heard at length the arguments of learned counsel for the parties.

5. The learned counsel for the petitioner vehemently argued for bail by emphasizing that the petitioner has falsely and maliciously been involved in the case on the basis of wholly false and fabricated version which is apparent from the bare reading of the F.I.R. In this respect it was pointed out that though the occurrence is alleged to have taken place on the morning of 11-3-2001 in a thickly populated area of Deh Malyani, yet no independent and impartial witness from the locality has been associated with the recovery which raise very serious doubt about the bona fide of the said recovery. Additionally it is submitted that the report of the Chemical Examiner has not been received and the petitioner is languishing in jail since It 11-3-2001 and investigation having already been completed, the petitioner is entitled for grant of bail not as a matter of grace but as a matter of right. To argument the pleas reliance has been placed on 'Hadi Bux alias Hadoo v. The State 2000 PCr. LJ 714 Karachi and 'Muhammad Ashraf v. The State 2000 PCr. LJ

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6. Conversely, Mr. Muhammad Ayub, Deputy Advocate-General for the State opposed the bail application and contended that keeping in view, the huge quantity of contraband recovered from the possession of the petitioner and the previous conduct of the petitioner, the concession of bail has been rightly refused and the impugned order warrants no interference of this Court.

7. The petitioner has been apprehended from the spot and huge quantity of Charas weighing 1040 grams has been recovered from his sole possession. The Charas has been taken into possession and a recovery memo has been prepared in this respect duly witnessed by two police officials, S.H.O., Tariq Mehmood lodger of the F.I.R. has no enmity with the petitioner to falsely involve him in the instant case. It has been strongly pressed into service by learned counsel for petitioner that the mandatory provisions of section 103, Cr.P.C. had not been complied with and no independent witness has been associated with the recovery which has made the transaction doubtful. The submission of the learned counsel is without force. The recovery has been made in terms of section 25 of Control of Narcotic Substances Act, 1997 which reads:-- "

25. Mode of making searches and arrest.--The provisions of the Code of Criminal Procedure, 1898, except those of section 103 shall mutatis mutandis, apply to all searches and arrests insofar as they are not inconsistent with the provisions of sections 20, 21, 22 and 23 to all warrants issued and arrests and searches made under these sections."

8. It needs no reiteration that in criminal case specially in bail application every case has got its own circumstances and facts and the bails are granted under those particular circumstances and except broad principles laid down by the superior Courts, no other example is attracted and cannot be said to be a deciding factor for the purpose of disposing of a bail application. In the present case I find that prosecution has brought sufficient material on record which prima facie connects the petitioner with the guilt and does not entitle him for grant of bail. The rulings cited on behalf of the petitioner are distinguishable and speak of the different situation. The application fails which is hereby dismissed and bail is declined.

9. I would like to observe that in case the report of the chemical examiner is found favourable to the petitioner he may apply afresh for grant of bail.

10. The observations made above are tentative in nature and relate to the order in hand only. Q.M.H./M.A.K./320/P Bail refused.