2005 PLP 287 (YLR)

Having been involved in a case vide F.I.R. No.397, dated 5-9-2004 under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 read with section 9 of the Control of Narcotic Substances Act, 1997, registered at Police Station, Nowshera Kalan the accused petitioner applied for his release on bail in the Court of learned Additional Sessions Judge-III, Nowshera but his application was dismissed vide order, dated 17-9-2004. Now he has moved this Court for his release on bail.

2. Nisar Ahmad Khan, S.H.O. Police Station, Nowshera Kalan, through Murasila reported that on the night of occurrence, he along with other police party were on mobile patrolling when he got information that accused Shireen Zada is busy in the sale of narcotics in the shape of Charas and liquor. He visited the spot and overpowered the accused and a plastic bag containing 31 bottles liquor and 1000 gram Charas were recovered from the bag and case was accordingly registered.

3. Mr. Zamir Muhammad Khan, Advocai6 the learned counsel representing the petitioner, argued that no person from the locality was associated with the recovery of narcotics and, therefore, the provisions of section 103, Cr.P.C. were violated.

4. It was also argued that the accused with mala fide intention on the application submitted by one Muhammad Fayyaz who disowned the said application by submitting affidavit before the learned Additional Sessions Judge.

5. It was also argued that no independent witness has seen the recovery of narcotics and the alleged witnesses to the recovery are police officials.

6. It was further argued that previously only Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 were made applicable but later on section 9 of the Control of Narcotic Substances Act, 1997 was adds without obtaining the opinion of prosecution.

7. On the other hand, Mr. Umar Zafran, Advocate the learned counsel representing the State, argued that by section 25 of the Control of Narcotic Substances Act, 1997 section 103, Cr.P.C. has been excluded and in such-like cases no one is ready to stand as a witness therefore, the police officials to the recovery are as good as other witnesses. A huge quantity of contraband Charas/liquor it was argued, was recovered which disentitles the accused-petitioner to be released on bail.

8. I have heard the arguments of the learned counsel for the parties and perused the record carefully.

9. The first contention of the learned counsel for the petitioner that compliance of section 103, Cr.P.C. was mandatory, has no force. Section 25 of the Control of Narcotic Substances Act, 1997 has excluded the application of section 103, Cr.P.C Reliance in this regard is placed on Fida Jan v. The State 2001 P.Cr.L.J.

36. Moreover in State v. Muhammad Amin 1999 SCMR 1367 it was held that:-- It is by now settled law that provisions of section 103, Cr.P.C. do not apply if the recovery in not made in pursuance of search of a house, but is made elsewhere, for instance on the Highways or the road sides or the public places like Railway Stations, Bus Stands and the search of baggage or of the person at the Airports. Assuming for the sake of argument but without conceding that provision of section 103 (ibid) apply to the search of the baggage or of person, still its application has, been restricted on the principles of interpretation. It would, thus, be noticed that two independent witnesses are generally required to witness the recovery. This requirement of law is, however, subject to exceptions. It is common experience nowadays that due to apathy, the public at large are hesitant to come forward to witness the recovery in criminal cases for fear of reprisals in view of the present deteriorating law and order situation in the country.

10. The argument of the learned counsel for the petitioner that previously Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 were made applicable but later on section 9 of the Control of Narcotic Substances Act, 1997 was added without obtaining the opinion of the prosecution also has no force. It is by now settled that the Control of. Narcotic Substances Act, 1997 is the latest and more exhaustive law on the subject of narcotics as compared to the 1979 and by virtue of its section 76 read with section 74, its provisions shall have effect notwithstanding anything contained in any other law for the time being in force including the Prohibition (Enforcement of Hadd) Order, 1979. This view was taken by this Court in Nauroz Khan alias Tour v. The State 2000 PCr.LJ 1222 and Mahmood Khan v. State 2002 PCr.LJ 1402.

11. As huge quantity of contraband Charas and liquor was recovered from the possession of accused-petitioner, therefore, he is not entitled to the grant of bail. Resultantly, his application is dismissed. H.B.T./264/P Application dismissed.