1. QAZI EHSANULLAH QURESHI (CHAIRMAN).--- Succinctly narrated facts of the case are that the petitioner who is charged under section 9(c), C.N.S.A., 1997 vide F.I.R. No.24 of 2006 dated 22-9-2006 Police Station A.N.F. Gilgit, who after exhausting all the remedies from the subordinate Courts, moved the instant application before this Court for concession of bail. Story as enshrined by the prosecution is that while proceeding to China one namely Naeem Qureshi accused apprehended at Sost border and on personal search heroin/psychotropic substance was recovered from his personal possession. Which he disclosed that it belongs to petitioner Sahib Zada Jehangir who was also present at that moment, so both the accused were charged and booked vide F.I.R. No.23 dated 22-7-2006 under section 9, C.N.S.A. And brought to Gilgit A.N.F. Office. The petitioner during the interrogation further opined that a heroin powder kept in briefcase belonging to him is lying in the shop of one Younas at Shah Khan Block NLI Market. On this information S.H.O. A.N.F., P.W. Hainayat Shah and Nawab Alam H.C. Proceeded to the spot as indicated, accompanying accused Sahib Zada Jehangir. Where the accused pinpointed the briefcase and asked the shopkeeper Younas to hand over the same to him, while opened and internal cover torn, heroin powder packets were recovered from it, which weight was 1050 grams, 10 grams were separated for chemical examination, the remaining heroin was sealed marked as "AH". The parcel produced before the Court marked as Exh.P.W.1/B. During the course of proceedings before the Court, while statement of P.W.1 was being recorded on 7-12-2006, the Court on the request of counsel for the accused unsealed the parcel Exh.P.W.1/B (Eight in number) and again weighed which quantity discovered to be 970 grams, instead of 1050 grams. The learned counsel for the petitioner addressed the following points for the consideration.
(a) That the heroin material was not recovered from the personal search/possession of the accused either in F.I.R. No.23 or 24 dated 22-7-2004.
(b) That no search warrant was obtained from the trial Judge while conducting the raid upon the shop belonging to Muhammad Younas from where the briefcase containing the alleged narcotic drug was recovered.
(c) That the person from whose shop the briefcase in question was recovered is not implicated in the case in hand.
(d) That the site-plan prepared also is in conflict with the prosecution version.
(e) That the co-accused Naeem Qureshi is already on bail in this very case. So principle of consistency demands that the petitioner shall also be given relief.
(f) That the contraband weighed in the Court was actually 970 grams which quantity falls under 9- B, C.N.S.A. And for which the punishment is quite lesser i.e. 5 years.
(g) It is a case of further inquiry as such the bail cannot be withheld as of punishment. The learned counsel for the petitioner relied on NLR 2002 Criminal 22-5-2003 (sic), (sic) SCMR page 881 and PLD 1988 SC (AJ&K) page 14).
2. In rebuttal the learned counsel for the prosecution submitted that since the petitioner himself led the raiding party to the shop in question and handed over the briefcase, of his own to the A.N.F.
3. Party, in the situation there was no occasion to obtain search warrant under section 21 of Narcotic Act, 1997. He further addressed that so far the lesser quantity of heroin is concerned, it is a misconception, the prosecution in this respect had already moved the trial Judge to carry out the weight process once again. There is a prima facie case against the petitioner and a strong evidence is available on record. Hence petitioner does not deserve the concession of bail. The learned counsel for the prosecution placed his reliance on 2002 PCr.LJ page 1680, 2001 SCMR page 36, 1980 SCMR 2003.
4. We have heard the arguments advanced by the learned counsel for the parties, perused the record carefully. The learned counsel for the accused raised moot questions as to recovery, whether it was made from his personal search or not, recovery from the stranger shop without obtaining search warrant, despite prior information was a legal exercise or not, whether discovery of lesser quantity before the Court i.e. 970 by dint of which case falls under section 9-B, C.N.S.A.
5. Entitles him to concession of bail. As such points agitated by the counsel for the petitioner definitely require thorough scrutiny by the trial Court. In such eventuality, when the Court is of opinion that in presence of available record, there is little doubt that the offence is not punishable with death, imprisonment for life or ten years and there is sufficient scope for further inquiry, the accused can be released on bail as in the circumstances of the case, it becomes a fit case for further inquiry.
6. However, it is the job of the trial Judge to sift the grain from the chaff and thrash out the illegalities/anomalies and discrepancies on the part of the prosecution if any. So without discussing the merit of case as it may not prejudice/influence the mind of trial Judge, we allow the bail petition. The petitioner is, therefore, directed to furnish bail bonds to the tune of Rs,50 lac with two sureties in the like amount to the entire satisfaction of trial Judge. The sureties must be local, reliable and of means. The accused had already been ordered to be released on bail vide our short order, dated 19-3-2007.