1. MALIK HAQ NAWAZ, J.---The petitioner was booked for the offences under section 9(c), C.N.S.A., 1997 vide FIR No, 36/2016 dated 17-11-2016 of Police Station city Astore. Another FIR No,37/2016 was also registered against the petitioner for possessing illegal arms and ammunition and section 13, AO(XX) 1965 was imposed against him.
2. 2.After completion of necessary investigation, the petitioner was committed to judicial custody and after his judicial custody, he applied for post arrest bail, which was declined by learned trial Court vide Judgment/order dated 22-12-2016 and being dissatisfied from the order of learned trial Court, the petitioner has come to this Court for the same relief.
3. 3.The learned counsel for the petitioner submits that the local Police was not competent to register a case, under section 9(c), C.N.S.A., 1997 and only ANF Police was competent to register a case if registration of FIR is considered legal, then investigation of the case was to be conducted by ANF Police. The learned counsel further submitted that the local Police raided the house of the petitioner without any search warrant, which is illegal and unwarranted and the whole proceeding carried out by the local police are nullity in the eyes of law. The petitioner is non-convict, first offender, no more required for the purpose of investigation and there is no criminal record at his credit. There is no chance that he will tamper with the prosecution evidence or will abscond.
4. 4.On the other hand the learned Additional Advocate General opposed the petition with vehemence and contended that the petitioner is directly charged in the FIR, which has been lodged without any loss of time and a huge quantity of narcotic, arms/ammunition has been recovered from his house. The Addl. Advocate General contended that the offence entails capital punishment and the petitioner is not entitled for concession of bail.
5. 5.After hearing the parties and minute scrutiny of record reveals that SHO of Police Station Astore was informed by one FC Imran Khan to reach near Army Public School and on reaching there the FC Imran Khan pointed out the house of petitioner, which was raided and Charas 1040 gram and some arms/ammunition was recovered from the house of petitioner and two separate FIRs were registered.
6. 6.As well as registration of FIR by local Police under C.N.S.A., 1997 is concerned, it needs a thorough and detail judgment in the light of law laid down in PLD 1997 SC 408. However the crucial question which pinched me is the raiding of house of the petitioner without obtaining any search warrant as the SHO of Police Station Astore intruded into the house of petitioner like a wild bull and violated the sanctity of a house. The SHO was bound under law to obtain a search warrant before entering into a house. Entry into a house without permission of its occupants and without obtaining a search warrant under section 98, Cr.P.C. is not permitted. The SHO Police Station Astore violated the sanctity of "Chaddar and Chardiwari" which is not permitted under any law. Any Police officer, who enters in the house of any stranger, could be termed a "trespasser" and necessary criminal proceeding can be initiated against him by the complainant. There is another important factor in the case, which tilted my mind in favour of petitioner, as the narcotics recovered from the petitioner, was sealed at the spot but FIR is completely silent regarding separation of sample of allegedly recovered narcotic for further dispatch to chemical examiner for expert opinion.
7. 7.In cases involving intoxicants, if there is no expert opinion a lurking doubt, is left in the mind of the Court and benefit of same will go to the accused even at bail stage.
8. 8.As discussed above the SHO who recovered the alleged drug did not send the recovered articles to chemical examiner, thus, it cannot be presumed legally that the stuff so recovered was an intoxicant. Whenever and wherever two views are possible, the view, which favour the accused will be adopted.
9. 9.In view of above discussion, the petitioner is admitted to bail subject to furnishing of bail bond in the sum of Rs, 1000000/-(Ten lac) with two sureties each in the like amount to the satisfaction of trial Court.