' YAHYA AFRIDI, J.---Jehangir Alam son of Jehanzeb seek his post arrest bail in case F.I.R. No,24 dated 16-3-2011 for offences under section 27(1) read with sections 30, 231(a)(vii), 23(a)(1), 23(C)(1) and 27(3) the Drug Act, .1976 ("Act"), registered in Police Station FIA Crime Circle, Peshawar ("F.I.R.").
2. The case of the prosecution, as set up in the F.I.R., is that on 16-3-2011 at 1800 hours Provincial Drug Inspector ("Inspector") visited Shop No,21 under the name and style of Messrs Swat Medicos ("shop") situated at Singhar Medicine Market underpass near Khyber Teaching Hospital, Peshawar.
There, the Inspector asked the person present in the shop to produce drug sales and to allow him to inspect the shop under the enabling provisions of the Act. The said person disclosed his name to be Masood Alam and called a person on his telephone, who appeared and disclosed his name to be Jehangir Khan, the present petitioner. The Inspector further stated that he was refused access to inspect the shop and the petitioner obstructed him from his official duties. Finally, the Inspector, with the assistance of the FIA Staff, inspecting the shop and A found unregistered drugs, without manufacturing licenses, which were seized. The petitioner was arrested on the spot and the shop was sealed.
3. The learned counsel for the present petitioner vehemently argued that the prosecution had made up a false case against the present petitioner; that there was no evidence on the record to suggest that any violation of the provisions of the Act had been committed by the present petitioner; and that the so called evidence against the petitioner even predated the date of the raid, which clearly showed the `mala fide' of the Inspector.
4. The learned D.A.-G. Present in Court totally supported the case of the petitioner and contended that the action on the part of the Inspector was blatantly 'mala fide' and that there was no evidence to support the case of the prosecution, more so to connect the petitioner with the commission of the offence.
5. Lest this Court passes any findings on the merit of the case, at this stage, which may prejudice the case of the parties during the trial, suffice it to state that apart from the assertions of the Inspector, as narrated in the F.I.R., there is no credible evidence on the record, which may connect the present petitioner with the commission of the offence. Thus a case of 'further inquiry' is made out in favour of the present petitioner.
6. It would be very pertinent to mention that Form 6, has recorded over thirty nine drugs to have been seized by the Inspector at the time of the raid. However, there is no certificate regarding their analysis by the Government Analyst, required under the enabling provisions of the Act. The Certificates, which are available on the record, predate even the raid, which surely points to the colourable exercise of authority by the Inspector. This action has been seriously noticed by the authorities.
7. Before parting, this court finds it necessary to remind the trial court that the observations rendered by the High Court while disposing bail applications are not to be considered during the trial of the accused. In this regard the august Supreme Court of Pakistan in Shuaib Mehmood Butt v.
Iftikhar-ul-Haq (1996 SCMR 1854) has rendered clear guidance, which is to the effect that:-- "However we would like to point out in no certain terms that the observations made by the High Court in the orders granting bail and by us in this order are confined to tentative assessment made for the purpose of disposal of bail applications and not intended to influence the mind of the trial court, which is free to appraise the evidence strictly according to its merits and the law of the time of disposal of the case, which of course it is needless to say, is the function of the trial court".
8. These are the reasons for which the application for post arrest bail was allowed to the petitioner vide short order dated 15-4-2011, whereby the petitioner Jehangir Alam son of Jehanzeb was granted bail provided he furnished bail bond in the sum of Rs,500,000 (five hundred thousand) with two sureties each in the like amount to the satisfaction of the Illaqa/Duty Magistrate, who was to ensure that the sureties are local, men of means and reliable.