1996 P Cr (PLP)

2. When enquired, the petitioner disclosed that his name was Nasir son of Ghulam Muhammad and that he was the resident of Badezai.

3. On demand the petitioner failed to show that he was in lawful possession of the Charas/heroin powder. Similarly he could not produce a valid licence/permit for carrying the .30 bore pistol.

4. All the items were taken into possession by the S.H.O. vide recovery memo., dated 26-12-1995 in the presence of its marginal witnesses. Thereafter he scribed the Murasila and sent the same to Police Station Nasir Bagh, where, on its basis, F.I.R. No.289 was duly registered at 22-00 hours.

5. It may be pointed out that the samples of Charas and the heroin powder were sent for chemical analysis and in this respect the report of the Chemical Examiner is in the affirmative as it confirms that the contraband substance, recovered from the possession of the accused, were in fact Charas and heroin. It may be added that during the days of occurrence, section 144, Cr.P.C. was also imposed and by keeping an unlicensed pistol, the petitioner not only violated the provisions of the Arms Act but also violated the Prohibition Order.

6. The petitioner after his arrest in the first instance, applied for bail to the Ilaqa Magistrate, who vide his order, dated 7-1-1996, refused to enlarge him on bail. To redress his grievance, the petitioner submitted an application for bail before the Additional Sessions Judge, Peshawar (Mr. Ziauddin Siddiqui). The Additional Sessions Judge by his judgment, dated 15-2-1996, rejected his application for bail. Hence this petition.

7. I have heard Mr. Attaullah Khan, Advocate the learned counsel for the petitioner and Mr. Roohul Amin, Advocate the learned counsel for the State and have also gone through the record of the case carefully.

8. The main thrust of the arguments of the learned counsel for the petitioner was that the alleged recovery of Charas/heroin/unlicensed pistol, was witnessed only by the police officials and that the S.H.O., did not care or take pains to join some independent persons, from the public, to witness the recovery, that in the circumstances, the petitioner's case had become that of further inquiry and he was entitled to be released on bail, not as a matter of grace but as a matter of right. To support his contention, the learned counsel for the petitioner placed reliance on the following case-law:-- (1) Muhammad Aslam alias Billu v. The State 1986 MLD 1152, (2) Talib Hussain v. The State 1995 PCr.LJ 1626, (3) Zulfiqar Ali Shah v. The State 1995 PCr.LJ 1945.

9. In the case reported as 1986 MLD 1152, the prosecution version was that the A.S.I. Muhammad Suleman had received a secret information on 30-11-1985 that the petitioner was selling contraband heroin powder near Jamiya Ashraf-ul-Madaris. Thereupon, he proceeded to that site and apprehended the petitioner. On his personal search, heroin powder, weighing 13 grams, wrapped in a plastic cover, alongwith a dagger was recovered from him. In that case the Police Officer had received a secret information prior to the raid and therefore, he could have easily taken alongwith him, two respectable persons of the Ilaqa, to witness the recovery. The facts of that case are, therefore, quite different from the facts of the case in hand.

10. In the second case 1995 PCr.LJ 1626 the raid was conducted by the police on receiving a secret information in the first instance that Talib Hussain alias Taliba was selling narcotics in the graveyard known as Darbar Hazrat Peer Bachey Shah, Suraj Miani, Multan. Accordingly, the S.H.O. formed the raiding party, comprising of a number of police officials and raided the place. He searched the accused and recovered from his possession 20 grams of heroin and 110 grams of opium. The recovery memo. was attested by A.S.I. Zafar lqbal, and Head Constable Habibullah. It was held that the possession of 110 grams of opium was a bailable offence. Regarding the recovery of 20 grams of heroin, it was held that the Police Officer, after having received secret information, did not choose to join any person from the public in respect of recovery proceedings

11. In the 3rd case 1995 PCr.LJ 1945, the police party, under the supervision of A.S.I. Manzoorr Ahmad, Police Station Haroon Abad, was on Gasht at Fauji Chowk City Haroon Abad, when the petitioner arrived there. He, on seeing the police party, tried to decamp from the place of occurrence. However, the police party apprehended him and on search recovered 40 grams of heroin from his person which was taken into possession vide recovery memo., attested by the constables, namely, Manzoor Ahmad and Malik Ahmad. The contention of the learned counsel for the petitioner that even though the petitioner was apprehended and arrested from Fauji Chowk, no person from the public was joined at the time of alleged recovery, and that this aspect of the matter was entitled to be given due weight in favour of the petitioner, prevailed upon the learned Judge, who held that the recovery memo. was attested by two police constables and that no doubt, they were respectable persons but they being on Gasht in the area, alongwith Manzoor Ahmad A. S. I. /complainant, the veracity of the statements of the three Police Officers shall have to be tested by the weapons of the cross-examination. The learned Judge was of the view that the Police Officers of every rank were, no doubt, respectable persons but the law had to take its own course. He, therefore, accepted the application and admitted the petitioner to bail.

12. In the present case, it may be mentioned, that the petitioner was stopped and searched at about 21-30 hours, i.e., at 9-30 p.m. in the month of December, 1995 on Badezai Road (Ronda Badezai) which is very close to the Tribal territory. To expect that at that hour of the night, independent witnesses, from public, could be available at the scene of occurrence, would be too much. Similarly, the police party had no prior secret information regarding the fact that A the petitioner was transporting the contraband items and therefore, before apprehending him they could arrange for two respectable persons from the Illaqa. Keeping in view the facts mentioned above, I am of the opinion that no illegality has been committed by the police officials in not connecting independent persons/ public witnesses to witness the recovery.

13. Needless to mention that the learned counsel for the petitioner, for the time being, could not show as to why and for what reasons the petitioner was falsely implicated in the present case. There is nothing on the file to suggest that e the A.S.I./complainant had any motive, ill-will or enmity towards the petitioner to have him falsely implicated in the present case.

14. Since the petitioner was caught red-handed, with the contraband items, and his case also falls within the prohibitory clause/of section 497, Cr.P.C., C therefore, this petition does not merit consideration and is accordingly dismissed.

15. It may also be pointed out that the challan in this case has already been completed on 10-3-1996 and the prosecution is therefore, directed to file the same in the competent Court, within a fortnight. N.H.Q./1930/P??????????????????????????????????????????????????????????????????????????????????????????????? Bail refused.