' MALIK HAQ NAWAZ, J.---The petitioner seeks concession of bail through this Criminal Misc. No, 40/2016 against the order of the learned Session Judge Astore, who declined the concession of bail to the petitioner vide his order dated 04-03-2016.
2. The petitioner was booked for the above offences vide FIR No,01/2016 of Police Station Astore lodged by one SIP Faqir Muhammad on the clue of information supplied by ASI Muhammad Saeed.
The complainant along with Police contingent went to search the shop of petitioner/accused and on search recovered 500 grams of Charas, which was taken into possession in presence of the marginal witnesses, who are also police officials. After effecting the recovery and recovery proceeding FIR under section 9(b) CNSA-1997 was registered against the petitioner/accused.
3. The petitioner/accused applied for concession of bail before the trial Court which was declined vide order dated 4.3.2016 and being dissatisfied from the verdict rendered against him, he has filed the instant petition for relief of bail.
4. The learned counsel for the petitioner/accused contended that the shop of the petitioner/accused was raided without obtaining any search warrant and no private witness has been cited, despite of the fact that the shop of the petitioner is located in a thickly populated area.
He further submitted that the recovery of contraband stuff even if accepted, it provide only a punishment of 7 years, which does not fall within the prohibitory clause of section 497, Cr.P.C. And the petitioner/accused is entitled for the concession of bail.
5. The learned Dy.A.G. Opposed the bail application and submitted that the petitioner/accused was dealing narcotics and there were no earthly reasons for his false implications.
6. We have heard the parties at length and scanned the record of the case with the able assistance of counsel for the parties.
7. The story of the occurrence as reflected in the FIR, it is crystal clear that the complainant received information from ASI Muhammad Saeed of Special Branch that some contraband narcotics is available in the shop of the petitioner/accused but despite of prior information no independent private persons were associated with recovery proceedings. No doubt, Section 25 of CNSA excludes the association of private witnesses, but at the same time it does confer unbridled right to public to make it an excuse for all the cases, when apparently there was no chance that either the accused will disappear from the scene or the narcotics were removed somewhere else. The conduct of police cannot be given shelter and non-association of independent witnesses will favour the accused even for limited purpose of bail.
8. The shop of the petitioners/accused was situated in a thickly populated area and local police has no authority to search the shop without resorting to codal formalities provided under law to carry out the search which have also not been followed rather violated.
9. Since the maximum punishment provided for the offence is only up to 7 years, which does not fall with the prohibitory clause of Section 497 and grant of bail in the offences, which does not fall within the prohibitory clause of Section 497, the concession of bail normally extended to the petitioner/accused until and unless, there are some compelling circumstances to refuse the same.
The petitioner/accused is neither habitual nor a previous convict and there exists no special circumstance to refuse the concession of bail to him.##TE#
10. So, we allow the petition and the petitioner/accused is admitted to bail subject to furnishing of his bail bond of Rs, 500,000/- (rupees five lac only) with two local sureties each in the like amount to the satisfaction of any judicial Magistrate at Astore. The petitioner/accused be released not required in any other case. File.