2011 PLP 487 (MLD)

SYED SAJJAD HUSSAIN SHAH, J.

As the concession of bail refused to accused/petitioner by the fora below in case F.I.R. No.290 dated 5-10-2010 under section 9(c), C.N.S.A./13-A.O., registered at Police Station Usterzai, Kohat, hence, moved the instant application for his release on bail.

2. Briefly stated facts of the case as per F.I.R. are that the occurrence took place on 5-10-2010 at 16-00 hours, reported on the same day at 16-45 hours under above referred sections of law by complainant Zeenat Hussain, S.-I., Police Station Usterzai, Kohat against the accused/petitioner, he used to sell chars in his general store. On spy information received on the day of occurrence that he was selling chars, informer was sent to the general store of the accused/petitioner, the two signed notes of denomination of rupees one hundred given to him for test purchase. After a while, he brought a small packet of chars, thereafter, police party raided the general store of the accused/petitioner. The accused/petitioner present in his shop, was interrogated, on his pointation two plastic bags recovered containing charas from the cavities of Almirah, after weighing found 2200 grams charas pukhta, the purchased chars weighing 10 gram, thus, total chars so recovered weighing 2210 grams. On further search recovered one Kalashnikov bearing No.17262515 along with fixed charger containing ten live rounds of 7.62 bore. Five grams chars sent for chemical examination to FSL and rest sealed into separate parcel and a sum of Rs.1200 recovered from the accused/petitioner.

3. The learned counsel for the accused/petitioner contended that the I.O. had made the search without any search warrant issued by the competent authority, therefore, the entire proceedings conducted were in violation of law. He further argued that neither the name of test purchaser was disclosed nor the person who had purchased the chars was examined. In such circumstances, so called recovery seems to be doubtful, besides, illegal. In the recovery memo there is no detail of the currency notes pointed out that those were marked and there is no mention of the store of the accused/petitioner but it was godown wherefrom allegedly the recovery was made. He also pointed out the contradictions in the F.I.R. and recovery memo and khaka baramdagi. The boundaries of the general store have not been mentioned in the recovery memo. He further contended that the quantity of contraband be considered while deciding the bail petition. Reliance placed on 2002 PCr.LJ 1429, 2008 SCMR 111 and 1998 PCr.LJ 370.

4. The learned counsel for the State strenuously contested the bail application and contended that the accused/petitioner charged with the offence, heinous in nature, ample evidence brought on record in order to connect the accused/petitioner with the crime. He argued that the recovery was effected from the godown of the accused/petitioner. He also contended that the prosecution has no ill-will to the accused/ petitioner. He has admitted that the age of the accused/petitioner is 17-1/2 years and under the law can be treated as juvenile.

5. Arguments of the learned counsel for the parties considered and record carefully perused. 7(sic). It is worth-noting that the I.O. raided the general store belonging to the accused/petitioner but without obtaining search warrant under section 21 of the Control of Narcotic Substances Act, 1997. The alleged recovery was neither made from the possession of the accused/ petitioner nor on his pointation. The alleged recovery was not effected in the presence of two 'respectable persons belonging to the same locality as required under section 103, Cr.P.C. No statement of the test purchaser recorded, likewise, no detail of the store and godown provided in the recovery memo. Admittedly, the accused/petitioner aged about 17-1/2 years of tendered age. The factum of age was admitted by the learned State counsel. In such eventuality, the accused/petitioner can claim the concession of bail under the Juvenile Justice System Ordinance, 2000. It is rather admitted by the prosecution that the accused/petitioner had no previous record of involvement in such-like cases. The court while considering the question whether certain case falls within prohibition contained in subsection (1) of 497, Cr.P.C., the quantity of contraband recovered, the prohibition, provided in section 9-c of the Act ibid can be overcome in the instant case. As the quantum of sentence always commensurate with the quantity of contraband. In such circumstances, no hard and fast rule could be laid down but for the purpose of grant of bail, while making the tentative assessment and taking the case of prosecution to its extreme would entail the punishment so provided under the law. In the instant case, the answer would be that same would go out of the prohibition clause of section 497, Cr.P.C. Reliance placed to a case titled Sakina Bibi v. The State, reported as 2008 SCMR 111, the accused/petitioner found entitled to the grant of bail. Thus, accordingly, the accused/petitioner is released on bail subject to furnishing bail bonds in the sum of Rs.2,00,000 with two sureties each in the like amount to the satisfaction of the Illaqa/Duty Magistrate. H.B.T./414/P?????????????????????????????????????????????????????????????????????????????????????????????????? Bail granted.