1. Having been involved in a case registered FIR No, 86 dated 6.2.2007 under Section 9 of the Control of Narcotic Substances Act, 1997 at Police. Station Tehkal, Peshawar, the accused-petitioner applied for his release on bail in the Court of learned Sessions Judge, Peshawar which was entrusted to Additional Sessions Judge-X, Peshawar, who dismissed the application vide order dated 14.4.2007. He has now filed the application in hand before this Court for his release on bail.
2. Mr. Sahibzada Riazat-ul-Haq, Advocate, the learned counsel representing the accused-petitioner, argued that the alleged recovery of contraband charas has not been effected from direct and conscious possession of the petitioner, rather the same has been recovered from the residential room of the house, therefore, it is yet to be determined as to whether the petitioner is exclusive owner of the house wherein other family members are also residing.
3. It was also argued that the search warrant was not obtained either from the learned Judge, Special Court or from the learned trial Court as required 20 of the Control of Narcotic Substances Act, 1997, therefore, the said provision of law has been violated.
4. It was further argued that prior to raid no lady constable was accompanied with the raiding party and the words 'lady constables' have been subsequently overwritten in the murasila, hence the accused-petitioner is entitled to be released on bail.
5. On the other hand, Mr. Obaidullah Anwar,, the learned Addl. AG representing the State, argued that five (05) kgs. charas (pukhta) has been recovered from the room of house of the accused- petitioner, where he was residing.
6. It was also argued that the FSL report available on file is in positive, therefore, the accused- petitioner is not entitled to the grant of bail.
7. I have heard the learned counsel for the parties at length and perused the record.
8. The complainant, Rajab Ali Khan SHO Police Station, Tehkal; alongwith other police, on receipt of prior information that the petitioner was selling charas in his house, raided the same, as a result of which, charas (pukhta) weighing five (05) kgs consisting of five (05) packets in a black shopping bag was recovered from his residential room. Out of total quantity, five (05) grams charas was taken from each packet and sent to FSL for chemical analysis, while the remaining charas was sealed in a separate. parcel. The accused-petitioner had already absconded from the spot before the arrival of police as he was needed in another case FIR No, 1417 dated 11.12.2006 under Section 9 of the Control of Narcotic Substances Act, 1997. Accordingly, a murasila was sent to police station, where a case under Section 9 of the ibid Act was registered against the accused-petitioner as mentioned above. No doubt the contraband charas was allegedly recovered from the residential room of house of the accused-petitioner, but the perusal of the record shows that the said house was not in exclusive use of the petitioner. Further, despite having prior knowledge about the selling of charas, none from the locality was associated with the recovery of alleged contraband charas, therefore, the provisions of Section 103 Cr.P.C. had not been complied with.
9. It is on record that under Section 22 of the Prohibition (Enforcement of Hadd) Order, 1979, the search warrant had been issued by Mr. Tila Muhammad Khan, Judicial Magistrate-III, Peshawar whereby the SHO Police Station, Tehkal was authorized to enter the house and arrest the accused- petitioner dealing in the business of contraband charas, but the SHO of said police station did not follow the relevant law as the search warrant in question could only be issued by the learned Judge, Special Court ANF and not by the Judicial Magistrate as was done in the case in hand.
10. The occurrence in the case in hand had taken place on 6.2.2007 whereas the samples were received in the FSL on 3.4.2007 after the c delay of one (01) month and twenty seven (27) days and there is no explanation as to where the samples were lying for such a long period.
11. Resultantly, I accept the application in hand and direct that the accused-petitioner be released on bail on furnishing bail bond in the sum of rupees five (05) lacs (Rs, 5,00,000-only) with two sureties each in the like amount to the satisfaction of the learned trial Judge, who shall ensure that the sureties are local, reliable and men of means.