Through this petition, filed under section 497, Cr.P.C., Khalil ur Rehman alias Heera (petitioner) seeks post-arrest bail in case FIR No,112 of 2017 dated 26.02.2017 registered under section 9(c) of the Control of Narcotic Substances Act, 1997 at Police Station Khiali District Gujranwala.
2. Succinctly stated the case of the prosecution as unfolded from the crime report is to the effect that the petitioner, who was in police custody in case FIR No,73 of 2017 dated 12.02.2017 under section 392, P.P.C. registered at Police Station Khiali, made a disclosure that a sizeable quantity of charas was in his house situated in Gulshan Rehman Colony and he could lead to its recovery; that in pursuance of such disclosure, he was taken to his house, wherefrom he got recovered charas weighing two kilograms.
3. Learned counsel for the petitioner contends that the petitioner is innocent and has falsely been implicated in this case; that the recovery of contraband article is not witnessed by any resident of the vicinity, hence is in violation of 103, Cr.P.C., that the samples of the charas were dispatched to the Chemical Examiner with the delay of 18-days and that the petitioner has no concern whatsoever with the house, from where the recovery was effected.
4. On the other hand, learned Deputy Prosecutor General has strongly controverted the arguments of learned counsel for the petitioner and submits that a sizeable amount of charas has been recovered from the petitioner, that under the provisions of the Control of Narcotic Substances Act, 1997, there is no compulsion to associate two residents of the vicinity to witness the recovery proceedings and that even previously the petitioner was found involved in case FIR No,73 of 2017 which is suggestive of the fact that he is having criminal antecedents.
5. Arguments heard and record perused.
6. It evinces from the detail incorporated in the crime report that the petitioner, who was in the police custody in connection with a previously registered criminal case, led to the recovery of 2- kilograms of charas from his house.
In the above backdrop, we have meticulously gone through the record of the case and have found that as per prosecution case, the search and recovery was effected in pursuance of the disclosure of the petitioner, who was in police custody. Admittedly, no resident of the vicinity was associated in the recovery proceedings, however, such an omission has no adverse effect on the prosecution case as according to section 25 of the Control of Narcotic Substances Act, 1997 (hereafter referred to as CNS Act, 1997) the provisions of section 103, Cr.P.C. are made inapplicable in respect of search proceedings under CNS Act, 1997.
7. A wade through the scheme of things provided in CNS Act, 1997 reveals that the provisions of the foregoing Act, which is a special law, are stringent in nature. It is well settled principle of law that the provisions of a statute are to be applied as a whole and cannot be subjected to a pick and choose approach. If on one hand, it is postulated in section 51 of CNS Act, 1997 that a person accused of an offence under this Act punishable with death is not to be granted bail, then on the other hand, a police officer is also required to obtain a warrant for conducting search of, a premises, regarding which he has reasons to believe that narcotics etc. are being kept or concealed. We have noticed that according to the section 20 of CNS Act, 1997, the search of a building, about which there are reasons to believe that narcotic drug, psychotropic substance etc. are being kept, is to be conducted under a warrant of search to be issued by a special court. The requirement of search warrant can only be relaxed in circumstances mentioned in section 21 of CNS Act, 1997. According to the foregoing provisions, if the police officer concerned forms an opinion that the search warrant cannot be obtained, without affording an opportunity of concealment or removal of narcotic drugs and others, only then he can enter into the premises without getting a search warrant. In the instant case, since the petitioner was already in the custody of police and that too in a previously registered criminal case, hence, there was no possibility of the concealment or the removal of charas. In such an eventuality, the Investigating Officer should have obtained a search warrant in accordance with section 20 of CNS Act, 1997. This omission on the part of the Investigating Officer provides a valid ground for the grant of bail. In somewhat similar circumstances, the bail was granted to accused in the cases reported as Waris Khan v. The State (2000 PCr.LJ 1225) and Zar Gul v. The State (2003 PCr.LJ 1392).
8. There is another aspect of the case which reasonably attracts the provisions of 497(2), Cr.P.C.
The house, from where the contraband substance was recovered, is situated within the jurisdiction of same police station. Yet, no evidence, whatsoever is available on record to connect the petitioner with the house in question. According to section 3 of the Punjab Information of Temporary Residents Act, 2015, it is made mandatory that whenever a premises is rented out, its information is to be provided to the local police. It is appropriate to have a look as to how section 3 of the Act ibid is enacted. The same is being reproduced below:-- "Information to police.---(1) Subject to subsection (3), the property dealer, landlord and tenant shall, within fifteen days from the time of delivery of possession of the rented premises to the tenant, provide information about the tenant in the prescribed manner to the police through the fastest means of communication.
(2) The owner or manager shall, within twenty four hours from the time of arrival or check in of a guest, provide information about the guest in the prescribed manner to the police through the fastest means of communication.
(3) If one of the persons mentioned in subsection (1) or subsection (2) provides the requisite information, the other concurrently responsible persons shall not be liable for non-provision of the information to the police."
From above, it can safely be gathered that the police was already having the requisite information, along with the copy of the lease agreement but still no evidence is brought on record. The possession, even if interpreted in a broader sense i,e, physical or constructive has to be proved on the basis of some material. In the given scenario, since no lease agreement is presently available on record, hence, the possession of the petitioner regarding the recovered contraband substance still needs further inquiry and probe within the meaning of section 497(2), Cr.P.C. As a necessary corollary, a question arises as to whether this court can enter into such questions at bail stage or not, as only a tentative assessm ent is permissible at such stage. It will be advantageous to make reference to the case of Adrees Ahmad and others v. War All and another (2010 SCM R 64) wherein the Hon'ble Supreme Court of Pakistan while seized with the bail matter observed as under:-- "We are conscious of the fact that an indepth scrutiny of the entire evidence is not required in such like cases but It is to be kept in view that no decision can be made in vacuum."
In another case reported as Shahzad Ahmed v. The State through Islamabad (2010 SCM R 1221), the Hon'ble Apex Court while discussing the principle for the grant of bail observed as under:-- "It is settled principle of law that while deciding bail application the court should consider the following pieces of evidence:--
(a) Allegation made in the FIR.
(b) Contents of the FIR and statements recordedunder section L61, Cr.P.C.
(c) Other incriminating material against accused,
(d) Nature and gravity of the charge,
(e) Plea raised by the accused.
From the observations of the Hon'ble Supreme Court of Pakistan contained in above mentioned cases, it can safely be gathered that while deciding a bail application, the defence plea of the accused can be looked into tentatively and no decision is to be made in vacuum.
9. For what has been discussed above, the case against the petitioner is found to be of further inquiry and probe within the meaning of section 497(2), Cr.P.C, Consequently, the instant petition is accepted and the petitioner is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs,500,000/- (rupees five lac) with two sureties each in the like amount to the satisfaction of the learned trial court.