WAQAR AHMAD SETH, C.J.-- Accused/petitioner Riaz Ullah son of Said Muhammad resident of Shakas Jamrud, District Khyber seeks his release on bail who was charged in case registered vide FIR No. 159 dated 28.07.2020 under section 9-D, Control of Narcotics Substances Act, Police Station, Jamrud District Khyber , after refusal from the Court of learned Additional Sessions Judge-I/JSC, Khyber , vide order dated 10.08.2020.
Hence the instant bail petition.
2. Brief facts of the case as per contents of FIR are that on 28.07.2020 at 1600 hours, the local police of Police Station Jamrud, District Khyber , while on patrolling in their vicinity , received spy information that huge quantity of contraband in the shape of heroin and opium (Chara) is present in the house of Abidullah, which is going to be smuggled somewhere in the night, upon which, they raided the place of occurrence where three persons were found. One of the persons disclosed his name as Riazullah the present accused/petitioner , who was having a shopping bag in his hand, which on search, led to recovery of heroin weighing 03 Kilograms. The second person disclosed his name as Maaz Ullah, who was also having a shopping bag in his hand, which on search, led to recovery of heroin weighing 02 Kilograms. The third person disclosed his name as Abidullah, who was also having a shopping bag in his hand, which on search, led to recovery of heroin weighing 04 Kilograms. Similarly , while checking room of accused, two sacks weighing 23 Kilograms, Heroin, 31 Kilograms opium (chara) and chemical
(Acid) measuring 15 liters were also recovered. Thus, the accused were arrested on the spot and a case under the above section of law was registered against them.
3. Arguments of parties heard and available record perused minutely .
4. No doubt, huge quantity of contraband was recovered from personal possession of petitioner as well as from room of the house but vide recovery mem o dated 28.07.2020, the I.O. has separated samples from the whole stuff and sent to the FSL for analysis. Similarly , at the time of raid, no lady constable was associated with the local police and this aspect of the case is also yet to be determined at the trial. There is nothing on record that petitioner is a previous convict or involved in such like cases.
5. In this view of the matter case of the present accused/petitioner also hit by the Rule of Consistency as the principal co-accused namely Maaz Ullah has already been released on bail by this Court vide order dated 20.08.2020 rendered in Cr . Misc B.A No. 2506-P/ 2020 titled Maaz Ullah v . State .
6. Record further suggests that admittedly in the FIR search warrant was not obtained because the Court timings were over, however , the information was brought into the notice of their high-ups, but nothing in black and white is available on the file to show that the same was either brought into the notice of their seniors or they have permitted them to conduct raid over the dwelling house. Thus violation of section 28(2) of the KP Control of Narcotic Substances Act, 2019 has been made.
7. Similarly , compliance of section 103, Cr.P.C. has not been made, which is a mandatory requirement of section 31 of KP Control of Narcotic Substances Act, 2019, which deals with the mode of making search and arrest, where under the provision of the code, except those of section 103, shall mutatis mutandis apply to all search and arrest.
That directions contained in section 27 of the ibid Act has also been violated. Conse quently , provision attached to C section 31 of the Act being mandatory is of worth consideration which has also not been complied with letter and spirit.
8. Moreover , petitioner is behind the bars since his arrest. Investigation in the case is complete and the petitioner is no more required for further investigation and keeping him behind the bars would serve no useful purpose. Thus, keeping in view the above facts, case of petitioner becomes arguable for the purpose of bail.
9. Resultantly , this bail application is allowed and the accused-petitioner is admitted to bail provided he furnishes bail bonds in the sum of Rs. 10,00,000/- (One Million) with two sureties each in the like amount to the satisfaction of Illaqa/Duty Judicial Magistrate, who shall ensure that the sureties are local, reliable and men of means.
10.Above are the reasons of my short order of even date.