' SYED YAHYA ZAHID GILLANI, J.---Mst. Bushra has been declined bail by learned Judge Special Court, Peshawar, vide order, dated 16-4-2008, under the Control of Narcotic Substances Act, because she was travelling on the front seat of a car with the co-accused/driver, not related to her, wherefrom its secret cavities 2400 grams Charas, 2700 grams opium and 50 grams heroin were recovered and she was consequently booked as co-accused in case F.I.R. No,28 dated 20-3-2008 of Police Station ANF, Peshawar, under section 9 (c), CNSA.
2. I have heard Mr. Noor Alam Khan, Advocate, for the accused/ petitioner and Mr. Salahuddin Khan, D.A.-G., for State, in the light of record.
3. Besides, the two points that Narcotic Substances were not directly recovered from the possession of the lady accused/petitioner, and that the fact of her having knowledge of their concealment in the car; it was also vehemently argued that she is entitled to be released on bail under the Code of Criminal Procedure (2nd Amendment) Ordinance, 2007 (No, XXVI of 2007), whereby section 497, Cr.P.C. Has been amended and women folk have been declared entitled to bail in all cases, subject to some exceptions, in which this case does not fall. The objection of learned D.A.-G., that the Ordinance has been expired, was successfully met with by learned counsel for the petitioner by producing Article-4 of PCO No, 1 of 2007 reported in PLJ-2008 Federal Statutes page 350, whereby all the existing Ordinances were allowed to continue in force, until repealed.
4. Learned D.A.-G. Also raised a legal point that section 51 CNSA excludes application of section 497, Cr.P.C, and provides its own mechanism for release of an accused arrested thereunder. So the aforesaid amending Ordinance No, XXVI of 2007 has no concern with the case registered under CNSA. This point was raised before a Single Bench of this Court in Cr. M. No, 895 of 2006 titled "Mst.
Rukhsana...v...The State." The relevant portion in para. Nos.3 & 4 of this judgment dated 25-7-2006 is reproduced for ready reference:--- "(3) However, in accordance with the latest amendment, the extra ordinary relief has been extended to the women prisoners they have to be released on bail except in the cases where the punishment is prescribed as death or imprisonment upto ten years and that too in restricted categories of terrorism, financial corruption and murder. The offences under the CNSA are not excluded for the said proviso. Such an unqualified concession shall affect the women-folk more seriously because thereby they are likely to be used as carriers and so scared position of female citizens will be tainted and the ladies who were generally expected to be good mothers for the bright future of the nation, shall be used as drug traffickers in a pursuit extremely damaging for the entire society. Nonetheless, in the wisdom of the legislature, since no exception has been specified in the said proviso for not extending the benefit for the offences under the, CNSA, therefore, despite the severe punishment of death and imprisonment for life under section 9 (c) CNSA for the quantity of 10 K.g and above, the petitioner has to be released on bail pursuant to the latest amendment in the Cr.P.C.
(4) The arguments that section 497, Cr . P. C . Has been specifically excluded from the operation of CNSA shall not be of much advantage to the prosecution, because the newly added proviso to section-497, Cr.P.C. Extends the facility to the offences under all the laws for the time being in force and thus the CNSA could not be deemed to be an exception."
5. I find myself in consonance with the above quoted views and hold that the accused/petitioner Mst. Bushra is entitled to be released on bail, availing the benefit of aforesaid Ordinance No, XXVI of 2007. She shall be released on bail, if she can furnish bail bond in the sum of Rs,2,00,000 with two local sureties to the satisfaction of Illaqa/Duty Judicial Magistrate. It shall be ensured that the sureties must be men of means.
6. Petition accepted.