2005 PLP 963 (MLD)

2. On receipt of prior information Inspector Samin Jan S.H.O. ANF Peshawar along with other contingent ANF staff held Naka Bandi near Itwar Bazar Phase‑II Hayatabad Peshawar. A Mazda bearing No.K 1289 appeared from Phase‑VI which was stopped and a lady sitting at the rear seat was searched through Lady Head Constable Saeeda Bano. From her personal search 12 packing containing 15 Kgs. contraband Charas were found wrapped along with her body. The said contraband was taken into possession. From each packet 4/4 grains were separated and sent to Laboratory for analysis.

3. Mr. Zulfiqar Ali Chamkani, Advocate representing the petitioner argued that the provisions of section 52 of Cr.P.C. were violated; in that the search of the petitioner was not conducted in accordance with the said section.

4. It was also argued that the contraband Charas was got examined from Assistant Chemical Examiner Rawalpindi (Punjab Province), who had not been notified under section 34 of the Control of Narcotics Substances Act, 1997, therefore, the said report was not admissible and cannot be taken into consideration.

5. It was also argued that the case of the petitioner was that of further enquiry and it was yet to see as to whether 15 Kgs. Charas could be wrapped around the body by a lady or not.

6. On the other hand Mr. Tariq Kakar, the learned counsel representing ANF argued that the accused‑petitioner was searched by a Lady Head Constable in accordance with section 52, Cr.P.C.

7. It was also argued that the Assistant Chemical Examiner Rawalpindi (Punjab Province) had been notified vide S.R.O. No.596(I)/97 and was conferred with powers of section 34, C.N.S.A. to analyze/test the samples, therefore, no violation of section 34 of C.N.S.A. was made.

8. It was also argued that there was a strong prima facie case against the petitioner, the witnesses of recovery have supported the case of prosecution and chemical report was in positive.

9. I have heard the learned counsel for the parties and perused the record

10. So far as the first contention of learned counsel for the petitioner that the petitioner was not searched in accordance with section 52 Cr.P.C. is concerned, the same has no force. The contents of the F.I.R. show that the accused-petitioner was searched by Mst. Saeeda Bano Lady Head Constable and from her personal search 12 packets containing 15 Kgs. contraband Charas were found wrapped with her body, therefore, the search of the petitioner was in accordance with the requirements of section 52, Cr.P.C. The other contention of the learned counsel for the petitioner that the Assistant Chemical Examiner Rawalpindi (Punjab) was not notified under section 34 of C.N.S.A. is untenable, in the light of A Notification No.S.R.O. 596(I)/97 wherein all Narcotics Testing Laboratories set up by the Provincial Governments have been classified to be the Federal Narcotics Testing Laboratories for the purpose of Control of Narcotic Substances Act. For the sake of convenience the S.R.O. is reproduced hereinunder: "S.R.O. 596(I)/97.‑‑‑In exercise of powers conferred by section 34 of Control of Narcotic Substances Act', 1997 (XXV of 1997), the Federal Government is pleased to notify the Pakistan Council of Scientific and Industrial Research Laboratories (PCSIR) Lahore, National Institute of Health Laboratory, Islamabad, Sindh Laboratory of Chemical Analysis Karachi, PCSIR Laboratory Karachi, PCSIR Laboratory Peshawar and Central Drug Laboratory, 7th Central Street Defence Housing, Authority, Karachi and all Narcotics Testing Laboratories set up by the Provincial Governments to be the Federal Narcotic Testing Laboratories for the purpose of the said Act."

11. The accused petitioner was found in conscious possession of 15 Kgs. of Charas. The recovery has been supported by the witnesses of recovery memo. and the report of the Chemical Analyst is in positive. The accused‑petitioner has been charged under section 9(c) of the Control of Narcotic Substances Act and since contraband Charas of huge quantity was recovered from her possession, the punishment provided under the said section is death or imprisonment for life or imprisonment for a term which may extend to 14 years and also liable to payment of fine which may be up to one million Rupees, therefore, I am not inclined to release the accused‑petitioner on bail. Resultantly, her bail application is dismissed. H.B.T./360/P Bail application dismissed.