' SHAH JEHAN KHAN AKHUNDZADA, J.---Faisal Munir accused-petitioner facing the charge under section 9(c) Control of Narcotic Substances Act, 1997 vide F.I.R. No,246 dated 31-3-2013 registered at Police Station, Hoti District Mardan was refused bail by the learned Additional Sessions Judge- IV/JSC, Mardan vide her order dated 16-4-2013. Now he has approached this Court for the same relief.
2. Brief facts of the case are that Latif Khan ASI along with other police officials on 31-3-2013 at 1200 hours while on gasht of the Illaqa, suddenly found, a young boy coming out from the street who was stopped and on inquiry he disclosed his name as Faisal Munir son of Akhtar Munir and on conducting his personal search, two packets of Charas wrapped in a yellow cloth bag concealed in his trouser fold weighing 1750 grams and heroin weighing ten grams wrapped in a plastic bag, found in his side pocket, were recovered. He arrested the accused on the spot and a case under the above section of law was registered against him. The said ASI also separated 5/5 grams from each packet of Charas and one gram heroin from the lot of heroin for analysis through FSL while the remaining stuff was sealed into separate parcel.
3. Learned counsel for the accused-petitioner without touching the merits of the case contended that in the case in hand Latif Khan ASI who is below the rank of Sub-Inspector has allegedly seized the contraband, arrested the accused, registered a case against the accused-petitioner and also investigated the case which is sheer violation of the mandatory provision of sections 21 and 22 - Control of Narcotic Substances Act, 1997, and Article 18 sub-clause (4) of Police Order, 2002. He further submitted that the alleged recovery of contraband has been effected from the accused- petitioner on 31-3-2013 and sample whereof has been sent to the FSL for analysis but till date the said report is still awaited, hence he is entitled to the concession of bail on this score alone.
Therefore, according to him in view of the above violation of the provisions of law and the non- availability of the FSL report, case of the accused-petitioner requires further probe, falling the case of the accused-petitioner within the ambit of subsection (2) of section 497, Cr.P.C. The above proposition of law could not be controverted by the learned State counsel.
4. Since violation of the mandatory provisions of Control of Narcotic Substances Act, 1997 and Article 18(4) of the Police Order, 2002 has been shown to have been committed in the case in hand, therefore, I would restrict myself to discuss as to whether the ASI concerned who registered the case against the accused-petitioner has violated the mandatory provisions of sections 20 to 22,.
25, 26 and 72 of C.N.S.A., 1997 and Article 18(4) of Police Order, 2002 or not.
5. Perusal of the record shows that ASI Latif Khan has arrested the accused-petitioner and has allegedly recovered contraband Charas and heroin from his possession. It further transpires from the record that material investigation, in this case in the shape of seizure, its weighing, and packing and sealing it into parcel, separation of same quantity of it for analysis through FSL has been carried out by the said ASI. Hence in this view of the matter contention of the learned counsel for the accused-petitioner that entire action taken by the said ASI by way of registration of a case under the provision of Control of Narcotic Substances Act, 1997 and its investigation by him from its inception to the end is violative of the law on the subject, seems forceful. Hence in view of the above discussion, keeping in view the principle laid down by Full Bench of this Court in (PLD 2001 Peshawar 152) case of the accused-petitioner is arguable for the purpose of bail. Moreover, the recovery of the contraband Charas and heroin has been recovered from the accused-petitioner on 31-3-2013 which was sent to the FSL for analysis on the same day but till date the said report is still awaited therefore, it is not known that whether the alleged recovered substance is Charas or heroin or otherwise. Thus, on this score too case of the accused-petitioner requires further probe and falls it within the ambit of subsection (2) of section 497, Cr.P.C. Which entitles the accused- petitioner to be given concession of bail.
6. Resultantly, the application in hand is accepted and the accused-petitioner is ordered to be released on bail provided he furnishes bail bonds in the sum of Rs,1,00,000 (Rupees one Lac) with two sureties each in the like amount to the satisfaction of Illaqa/Judicial Magistrate on duty. The sureties must be local, reliable and mean of means. The above are the reasons of my short order announced on 8-5-2013.