Abu Ayub son of Khawaja Abul Hassan, resident of Negolandh, Village Mashgool, Tehsil Markho, District Chitral, presently lodged in Central, Jail, Peshawar, has moved this bail application-in-case FIR No, 82 dated 31.12.2007, under Section 9 Control of Narcotic Substances Act, 1997, Police Station, Anti Narcotic Force, Peshawar.
2. Brief facts of the case are that on prior information received by Sardar Abdul Waheed, that a person in the name of Abu Ayub, resident of Chitral would smuggle huge quantity of heroin to foreign country through flight No, QR-347, so Inspector Sardar Abdul Waheed, SHO, P.S. Anti Narcotic Force; Peshawar alongwith police party reached Peshawar Airport. In the meantime, a person having a black bag in his hand reached search counter. He disclosed his name is Abu Ayub son of Khawaja Abul Hassan, Mohallah Banolandh, Villager Mashgool, Tehsil Morkho, District Chitral. On search of the bag 3 K.Gs. heroin was recovered. Out of which 5/5 grams heroin were sent for chemical analysis. On personal search of the accused, Passport, Air ticket, cash amount and mobile phone set were also taken into possession. The accused was arrested on the spot.
3. The accused-petitioner submitted bail application to the Court of Special Judge (CNS)
Peshawar. The learned Special Judge, after considering the arguments of the learned counsel for the parties and perusing the data available on the record, rejected the same on 31.1.2008.
4. Miss Farhana Marwat, Advocate, learned counsel for the petitioner submitted that there was only spy formation and no tangible evidence was available to connect the accused-petitioner with the commission of the offence. She further argued that there were lot of persons present at the time of recovery but none from the public was associated in the recovery proceedings. Reliance was placed on Sahib Zada Jehangir Vs. The State through A.N.F. (2007 PCr. LJ 1113). It was further submitted that in the case titled Muhammad Asghar Vs. The State (2007 PCr. LJ 1027), the accused had been arrested and 3 K.Gs charas was recovered, but he was released on bail. It was also submitted that normally the police plants the contraband in order to involve persons in the commission of the offence. It was also submitted that this case is one of further inquiry and the investigation has been completed and challan is ready to be put in the Court, thus, the presence of the accused-petitioner is no longer required in the instant case.
5. Mr. Salahuddin learned Deputy Attorney General, appearing for the State submitted that the contraband weighing 3 K.Gs. heroin has been recovered from possession of the accused- petitioner, which the petitioner was going to smuggle abroad, as he was caught red handed on the Airport when he was going abroad through Flight No, DR-347. Further submitted that there was no animosity on the part of the prosecution to involve the accused-petitioner in the present case. The samples were sent to Forensic Science Laboratory and the report is in positive.
6. I have gone through the record of the case and considered the arguments of the learned counsel for the parties.
7. Perusal of the record reveals that on a Search counter of International Departure Hall, Peshawar Airport, the accused-petitioner was caught red handed alongwith the contraband heroin, which after weighment came to be 3 K.Gs. The samples were sent to the Laboratory and the report received is in positive. The quantity recovered from possession of the accused-petitioner is hit by the embargo contained in Section 497 Cr.P.C. and the accused-petitioner is not entitled to the concession of bail, therefore, this bail application is rejected. However, the prosecution is directed to submit complete challan to the Court within 15 days and the learned trial Court is directed to dispose of the case as early as possible but not more than three months.