1. ' KHAWAJA NAVEED AHMED, J.----This bail application has been moved on behalf of applicants Badshah Mir and his son Nizamuddin who have been booked in, case F.I.R No,1 of 2008, Police Station ANF, Clifton Karachi in offence under sections 9(c), 12, 13, 15 CNS Act, 1997, ' Brief facts of the case as disclosed in the F.I.R is that "on 12-1-2008, S.H.O. Mir Badshah of Police Station, A.N.F. Clifton had received a spy information that huge quantity of Charas and Heroine is available at the resident of notorious drug dealer Sohail alias Suheeli and Shehzad Mir both sons of Badshah Mir. Upon this information the S.H.O. Had formed a police party and had proceeded towards the pointed place where he reached in government vehicle at 19-30 hours. It is alleged that two persons were standing at the pointed place along with blue coloured shopping bags in their hands. They spy who was present with the S.H.O. Had pointed out that these persons are employees of Sohail. Police party had arrested both persons in presence of A.S.-I. Shakeel and police constable Shamroz Khan prepared such mashirnama. Both the arrested persons had disclosed their names as Nazar Abbas son of Allah Ditta and Adil son Saeed Ahmed. On personal search purls of Charas were recovered from their possession. During interrogation the arrested persons had informed that Sohail and Shehzad Mir both sons of Badshah Mir are available at their House No,4072 and Narcotics are also available there. In the meantime two persons armed with rifle and pistol came out of the house and while firing on the raiding party made their escape good taking advantage of the darkness of the night. The special spy and arrested persons had disclosed the names of persons who were firing as Sohail alias Suheeli and Shehzad Mir both sons of Badshah Mir. The raiding party entered in the Baithak of House No,4072 and had arrested two persons, who had disclosed their names as Badshah Mir and Nizamuddin.
2. ' From search of the said house further quantity of narcotics were recovered. Apart from narcotics, Rs,112,000 were also taken in possession by the ANF officials. ANF had registered the case against all the accused persons. Four persons, namely, Badshah Mir, Nizamuddin, Adil and Nazar Abbas have been shown in custody, while Sohail alias Suheeli and Shehzad Mir son of Badshah Mir have been challaned under section 512, Cr.P.C.
3. ' Accused Badshah Mir and Nizamuddin had applied for bail in the Special Court No,1 (Control of Narcotics Substance) Karachi in Special Case No,12 of 2008. Their bail plea was rejected by the learned Special Judge.
4. ' The learned Advocate for the applicants has stated that it is an admitted position in the prosecution case, as disclosed in the F.I.R that no recovery of narcotics has been made from applicants Badshah Mir and Nizamuddin. The alleged recovery if any has been made from the house of Sohail alias Suheeli and Shahzad Mir. Badshah Mir has been booked for being the father of absconding accused while Nizamuddin has been booked for being brother of the absconding accused. The learned Advocate for the applicants has drawn my attention to page No,3 of the challan, the relevant portion of which is on page 19 of the Court file. This is the statement of arrested accused Badshah Mir recorded by the Investigating Officer during the interrogation. In this statement Badshah Mir has stated that he belongs to Kohat. He is residing in House No,4072/73, Street No,3, Sector D/2, Hijrat Colony along with wife and children. He has stated that in 1976 he had come from Kohat and had started job as Mali (Gardener). In 1980 he went to Abu Dhabi as a labour and came back to Pakistan in November, 2007, after about 27 years upon expiry of his employment visa. In his absence his sons Sohail alias Suheeli and Shahzad Mir had started dealing in narcotics.
5. It is mentioned in the challan that father had been telling both the sons not to do this business, but they did not listen to the father and finally the father had closed his eyes ((URDU TEXT}}. The learned Advocate for the applicant has relied upon case-law reported in 2003 PCr.LJ 1392, Zar Gul v.
6. The State, wherein it has been held as under:--
(5) "True that the provisions of section 21 read with section 25 is a violent exception to the universal principle of law on the question of search of any building, enclosure etc. By the police officer and the legislature in its wisdom keeping in view the gravity and menace as well as the evil effects of the tremendous increase in the trafficking and sale of narcotics has no doubt created exceptions which are justified for the above reasons but still the judicial emphasis has long been that to give credibility to search and recovery made by the police officer the association of two respectable persons from the locality is not an unessential formality.
(7) Keeping in view the above legal position emanating from the reading of the provisions of sections 20, 21 and 25 of the ibid Act combined the necessary implications are that the legislature has not given a free license/ authority to such officer to conduct search in private buildings like residential houses according to his own whims and wishes. His such actions are definitely controlled by the check and balance system provided therein therefore, such officer while exercising the exceptional powers conferred upon him under the provisions of section 21 is required to act strictly within the ambit of the said provision otherwise his action would be susceptible to serious doubts besides attracting the mischief of Irregularity to his such proceedings."
7. ' He has also relied upon the judgment of a learned Division Bench of this Court consisting of Mr. Justice Rehmat Hussain Jafferi and Mr. Justice Ali Sain Dino Metlo i.e, 2006 PCr.LJ 1251, Qadir Bakhsh and 5 others v. The State, wherein it has been held as under:-- "(4) As regards the confession of the applicants before the Investigating Agency, suffice to say that, according to Article 38 of Qanune-Shahadat, 1984, the same is inadmissible in evidence. The big quantity of Charas could have its importance only if the applicants were connected with it by cogent evidence. The prosecution has not been able to find out and recorded statements of the captain and other member of the crew despite passage of more than two years. The applicants cannot be kept in custody indefinitely simply to wait collection of evidence against them. It was for these reasons, recorded now, that the applicants, being entitled to the grant of bail, were by a short order, dated 25-4-2006, directed to be released on bail each on furnishing one surety in the sum of Rs,5,00,000 (Rupees five lacs) only and personal recognizance in the like amount to the satisfaction of the trial Court."
8. ' Another authority, which is very much applicable in the circumstances of the present case, which is a judgment of a learned Division Bench of this Court comprising of Mr. Justice Sarmad Jalal Usmani (as he then was and Mr. Justice Azizullah M. Memon i.e, 2006 PCr.LJ 58, Hussain Abid Jaffary v. The State wherein it has been held by the Division Bench as under:-- ' "The word "possession" implies a physical capacity to deal with the thing as one likes to the exclusion of every one else and a determination to exercise that physical power on one's own behalf. It implies dominion over an object that he has it and that he can exercise it. Possession must be conscious and intelligent possession and not merely the physical presence of the accused in proximity to the object.
9. ' The officials of the Anti-Narcotics Force entered into an official premises in joint possession of many officers/officials of the Excise and Taxation Department, as deposed to by the witnesses. It has come in the evidence that most of the properties found lying in the Almirah were the "case properties" of the cases, trial wherein either proceeded before the competent Courts of law, or were still pending. All such facts clearly indicate that the appellants were neither in the exclusive use of the Almirah nor in the exclusive possession of the recovered material (which were alleged to be in their possession). Thus, prosecution failed to prove its case against the appellants. Hence vide above stated short order, both these appeals were allowed and the impugned judgment of conviction and sentence awarded by the trial Court against the appellants was set aside and they were acquitted of the charge, with directions to release them forthwith if not required in any other custody case."
10. ' Learned counsel for the applicants has relied upon another judgment reported in 1996 PCr.LJ 651 Shankar v. The State, authored by Mr. Justice Nasir Aslam Zahid (as the then was), wherein it has been held as under:-- ' "From the above, it can be safely presumed that no search warrant had been obtained before the search of the house of the appellant. As the house was going to be raided for the purposes of recovery of contraband narcotics, it was mandatory under the law for the police officer to obtain search warrant. As in this case, search warrant had not been obtained, the search of the premises becomes illegal."
11. ' Learned counsel for the applicants has also relied upon 2003 PCr.LJ 1139, Jameel Khan v. The State wherein it has been held as under:- "(6) No doubt failure to conduct. Search in compliance with the provisions of section 21 of the CNSA may result in release and later on acquittal of the accused and thereby may defeat the very purpose of the statute it was enacted for but the Courts of law are bound to implement the statute as it is without being more royalist than the monarch by importing what is not in the statute. If any anomaly is created through its strict interpretation or the very purpose of the statute is defeated, the Legislature may well get it amended. So long as it is a part of the statute, it has to be interpreted as it is."
12. ' Syed Ashfaq Hussain Rizvi, learned Special Prosecutor, ANF has strongly opposes the bail application on the ground that the recovery is made from the house from where, 252 kg Charas and 1100 gms of heroine have been recovered. He says that the offence is punishable with death or imprisonment for life and section 51 of CNS Act prohibits grant of bail in such cases. He further states that report of chemical examination is positive. In the last he has opposed the grant of bail to the applicants. In support of his contention he has relied upon 2003 PCr.LJ 821, Lahore, 2001 SCMR 299, 1998 SCM R 496.
13. ' I have heard both the counsel and have gone through the record produced by the prosecution as well as by the accused. It is an admitted position that Badshah Mir is father of absconding accused Sohail alias Suheeli and Shehzad Mir. It is again an admitted position that Nizamuddin is the son of Badshah Mir. It is an admitted position that nothing incriminating has been recovered from the possession of Badshah Mir and Nizamuddin. The alleged recovery has been made from the house belonging to Sohail alias Suheeli and Shehzad Mir as per prosecution case. It is an admitted position that it was a joint family living in the said house where father, sons, their mother, wives and children were residing. ANF has shown two male members of the family as absconding accused while two remaining male members have been arrested and there is no male member in the family now to look after the women and children. Along with bail application photocopy of passport has been filed which confirms that Mir Badshah had left Pakistan in 1980 and had returned to Pakistan in November, 2007 i.e, after 27 years. His case is distinguishable from that of co-accused Sohail alias Suheeli and Shahzad Mir. It is surprising to note that there is an allegation of firing on the ANF by absconding accused Sohail and Shahzad Mir, but still Ilaqa police was not attracted at the place of incident. Nobody was injured, no empties were found at the place of incident and no one from Mohallah had heard the fire shots. Hijrat Colony is a very thickly populated area. There are shops and there is always sufficient light at the night time except during load shedding period.
14. There is no possibility of absconding of any one on foot when ANF officials were on vehicle.
15. Prosecution case is silent on all these aspects of the case. Regarding competency of the Courts for granting bail under the Control of Narcotic Substances Act, 1997 the law is very clear in view of the judgment of a Full Bench of Honourable Supreme Court reported in 1999 SCM R 1271, Gul Zaman v.
16. The State.
17. ' Keeping in view all aspects of the case mentioned above, I am of the humble view that the case of prosecution as far as present applicants are concerned required further inquiry under section 497(2), Cr.P.C. And I grant bail to B both the accused, who are father and son upon furnishing surety in the sum of Rs,200,000 (Rupees two hundred thousand only) each with P.R. Bond in the like amount to the satisfaction of the trial Court.