2002 P Cr (PLP)

Tariq Khan Kapar for the State. Date of hearing: 26th July, 2001. The petitioner is under arrest in case F.I.R. No.65 of 2000 Police Station A.N.F., Peshawar charged under section 9 of the Control of Narcotic Substances Act, 1997 (hereinafter referred to as C.N.S.A.) read with section 13 of the Arms Ordinance. He was refused bail by the lower Court, therefore, the instant petition for the said relief.

2. The contents of F.I. R. reveal that Iltaf Hussain and Imran Khan accused in case F.I.R. No.64 of 2000 under section 9, C.N.S.A. Police Station A.N.F. disclosed during interrogation that the contraband Charas recovered from them were given to them by the petitioner. On this disclosure the Assistant Director Police Station A.N.F. raided the house of petitioner, the petitioner present in house was apprehended and during house search recovered five packets containing contraband Charas weighing 5 kilograms allegedly from the residential room of the petitioner. Four grams from each of the packets were sealed separately for examination through F. S. L. and the remaining were sealed in a separate parcel. Two unlicensed pistols of .30 bore Pak‑made alongwith four empty magazines and 19 live rounds of the same bore were also recovered from the said room.

3. The learned counsel for petitioner contended that the alleged recovery has been made from a joint house not exclusively owned and possessed by the petitioner. Further submitted that before raiding the house of petitioner no search warrant was obtained in contemplation of section 21 of the C.N.S.A. The petitioner has falsely been roped in the case at the behest of accused in case F. I. A. No. 64 of 2000 and the alleged recovery of contraband Charas and the illicit arms though recovered from them but falsely planted against the petitioner. In support of his submission he relied on Muhammad Ashraf v State. 2000 PCr. LJ 917 and Waris Khan v. State 2000 PCr. LJ 1225.

4. The learned Special Prosecutor for A. N. F. strongly opposed the concession of bail to the petitioner with reference to the huge quantity of contraband Charas recovered from the dwelling house of the petitioner and ,the punishment provided for under section 9(c) of the C.N.S.A.

5. I heard the learned counsel for parties and perused the record. Without going deep into the merits of the prosecution case suffice it to say that there is nothing on record to show that the house where from the alleged recovery of contraband Charas and illicit arms was effected was exclusively in occupation of the petitioner and in such circumstances in the case reported as 2000 PCr.LJ 917, bail was granted to the accused to a case under C.N.S.A. The alleged recovery was neither made from the person of petitioner nor at his pointation and admittedly the joint house of the petitioner was raided without obtaining a search warrant as required under section 21 of the C. N. S. A. The alleged recovery was also not effected in presence of two respectables of the locality as required under section 103, Cr.P.C. and it is alleged by the learned counsel for petitioner that the recovery has been planted against him at the behest of accused in case F.I.R. No.64 of 2000, Police Station A.N.F. His Lordship Chief Justice of this Court has observed in identical case reported in 2000 PCr. LJ 1225 as follows:‑‑ "in the case in hand, the Police Officer has not at all recorded the grounds and basis of his information and reasons, why he avoided to obtain a search warrant. Neither this mandatory provision was resorted to before nor immediately after taking any action. The strong presumption would be that no circumstances existed at all to empower the Police Officer to avoid obtaining the search warrant. The apprehensions that the accused in the meantime would conceal the evidence or would make good his escape, are also not mentioned in the F.I. R. or in any other report to be furnished immediately after taking any action. These provisions are given in the relevant law in order to safeguard the right or privacy of a citizen which should not be allowed to be violated at the whims of a Police Officer."

6. In the aforesaid facts and circumstances of the case I found the case against the accused‑petitioner of further inquiry and therefore, enlarge him on bail under section 497(2) of the Cr.P.C. The petitioner be released from custody provided he furnishes bail bond in the sum of Rs.1,00,000 with two sureties each in the like amount to the satisfaction of the trial Court/Judicial Magistrate. H.B.T.520/P Bail granted.