2008 PLP 1589 (MLD)

MUHAMMAD ALAM KHAN, J.

Having failed to secure bail from the Court of Additional Sessions Judge-II, Haripur/empowered as a Special Judge under Control of Narcotic Substances Act, 1997, in case F.I.R. No.126, dated 20-4-2008 under section 9(c) of the Control of Narcotic Substances Act, 1997, Police Station, Kalabat Township, Haripur, Rehmat Zaman son of Haji Gul and Akhtar Nawaz son of Rehmat Zaman residents of Sector No.4, Mohallah Khabal, Kalabat Township has filed the instant bail application seeking their release on bail.

2. Brief facts of the case as narrated in the F.I.R. are that Muhammad Sadiq Khan S.H.O. Police Station Kalabat Township had received a complaint that the accused/petitioners above named are engaged in selling of contraband. It is stated in the F.I.R. that on 20-4-2008 the informer apprised the complainant that the accused/petitioners are selling contraband in their Baitak. On this information a lady constable namely Nadia No.243 and complainant along with Mohammad Arif A.S.-I., Ishtiaq DFC No. 306 along with other police officials raided the house of the petitioners/accused, searched the house of the petitioners and recovered two bags from the residential room of the petitioners. From one bag four packets of Charas were recovered while from the other bag opium was recovered, the complainant also recovered a small size of scale with various weighing instruments and a knife which was being used for the cutting of opium and Charas. On weighing the opium, it came out to be 1.015 kg while on weighing Charas the total Charas was found to be 3.850 kgs. Out of which 5/5 grams was separated, sealed in parcels and sent for chemical analysis. The complainant also received cash amount of Rs.400 and Rs.6790 comprising notes of various denomination along with a Nokia Mobile set bearing No.1110 which was taken into possession through recovery memo. and the accused were arrested. The accused/petitioners submitted bail application to the learned Additional Sessions Judge-II, Haripur (Special Judge) which was refused as stated above, hence the present bail application.

3. Mr. Azmatullah Malik Advocate, learned counsel for the accused/petitioners argued that there is no application for the issuance of search warrants and the search warrants available on the file, dated 22-3-2008, the validity of which was till 21-4-2008 and search was made on 20-4-2008, the 2nd last day of the search warrant. The Judicial Magistrate has issued search warrant, however, under the law the Magistrate was not competent to issue the same as it was a Special Court under section 20 of the Control of Narcotic Substances Act, 1997, to issue the search warrant. It was next submitted that the spot i.e. the house from where the alleged contraband has been recovered was not in the exclusive possession of the accused. The alleged contraband was not recovered from conscious and personal possession of the accused/petitioners.

4. Mr. Naveed Ahmad, Advocate, learned counsel appearing for the State argued that the petitioners have been directly charged in the F.I.R. and raid was conducted by the complainant strictly in accordance with law and under the provisions of the Control of Narcotic Substances Act, 1997. It was also argued that the place wherefrom the contraband was recovered was in exclusive possession of the accused/petitioners and the accused is not entitled to the concession of bail, reliance was placed on the case' of Muhammad Zaman v. The State 1999 PCr.LJ Page 797.

5. I have given my anxious consideration to the facts and legal position involved in the case and have perused the record with the valuable assistance of the learned counsel.

6. Perusal of the record reveal that the search warrant, dated 22-3-2008 in this case was issued by the Judicial Magistrate. Under the law search has to be conducted strictly in accordance with section 20 of the Control of Narcotic Substances Act, 1997 and it is the Special Court who has to issue the search warrant to any violation of this provision of law will make the search illegal. The Courts of law had to implement the law as it is as laid down in the cases State through A.G. Sindh Karachi v. The Hemjoo 2003 SCMR Page-881, Javid Gul v. The State reported in 2002 PCr.LJ 1429 and Jamil Khan v. State 2003 PCr.LJ Page 1139.

7. The prosecution has to prove at the trial that the contraband was recovered from the place which was in exclusive possession accused/petitioners. The site-plan would show that the place wherefrom the alleged recovery was made is a dwelling house surrounded by abadi but none from the public has been associated with the recovery proceedings.

8. The prosecution has annexed with the record two F.I.R.'s bearing No.210, dated 18-6-2005 and F.I.R. No.234, dated 5-6-2008, and on the strength of these F.I.Rs, it was argued by the State counsel that the accused/petitioners Rehmat Zaman son of Haji Gul being previously involved in selling narcotics is not entitled to the concession of bail. Mere producing of F.I.Rs. against the accused/petitioners will not disentitle them to the concession of bail, as the prosecution has to prove the guilt of the accused/petitioners in a Court of competent jurisdiction as held in the case of Shah Diyaz Khan v. The State, 2008 YLR Page 1070.

9. In view of the facts and circumstances of the case narrated above accept the instant bail application and order the release of the accused/petitioners on bail provided they furnish bail bonds in the sum of Rs.2,00,000 (two hundred thousands) with two sureties each in the like amount to the satisfaction of Illaqa Judicial Magistrate, I had disposed off this bail application by my short order, dated 21-7-2008 and the above are the reasons for the same. H.B.T/139/P Bail granted.