' The learned counsel for the parties have been heard at length Record of the case perused.
2. It must be stated at the very out-set that the order of the Sessions Judge, Peshawar (Mr. Shahjee Rehman Khan), dated 17-9-1998, vide which he had refused to enlarge the petitioner, a minor bov of about 8/9 years on bail, is not only arbitrary but is also perverse because of the following reasons:-- ' Firstly, that the Sessions Judge has patently failed to take note of the provisions of section 497, Cr.P.C. (proviso I) wherein he has been empowered to release the accused on bail, who are of tender age i,e,, minors, charged even for having committed offences punishable with death/imprisonment for life; ' secondly, that the Sessions Judge has failed to take into his consideration that the recovery of one Kg. Of Gardah Charas was allegedly effected from the possession of the minor (a boy of 8/9 years), while he was travelling in a bus, in the absence of any independent witness from the public. Even the driver or the conductor of the bus was not asked to witness the recovery memo.
' Thirdly, that the Sessions Judge has totally ignored the fact that the Chemical Examiner's Report has not been obtained by the prosecution so far to show that the item recovered from the possession of the petitioner was in fact "Charas"; and ' Fourthly, that the Sessions Judge did not bother to take into consideration the dictum laid down by the superior Courts for the grant of bail and cited before him in spite of the fact that the same were even mentioned in his order.
3. Resultantly, he appears to have been guilty of committing contempt of the superior Courts.
4. For the sake of convenience some of the case-law referred before the Sessions Judge is reproduced as under:--
(i) Bashir Ahmad and another v. The State 1987 PCr.LJ (Karachi) 750.
' In this case it was held by his Lordship Mr. Justice Nasir Aslam Zahid, the then Honourable Judge of the Sindh High Court, Karachi and now an Honorable Judge of the Supreme Court of Pakistan as under:-- "Criminal Procedure Code (V of 1898)--- ----S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4---Sindh Abkari Act (V of 1878), S.43(3)---Bail, giant of---On interception of car driven by petitioners Charas, weighing about three maunds was allegedly recovered from its cavities---None of offences, petitioner charged with, punishable with ten years or more---Petitioners allowed bail, in circumstances."
(ii) Abdul Hameed v. "Ihe State 1987 PCr.LJ (FSC) 1707. It was held by an Honourable Division Bench of the Federal Shariat Court of Pakistan comprising of their Lordships Mr. Justice Mufti Syed Shujaal Ali Qadri and Mr. Justice Muftakhiruddin, JJ., as under:-- "Criminal Procedure Code (V of 1898)--- ----S. 103---Object of S.103, Cr.P.C.---Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.4--- Words ' shall call' appearing in S.103, Cr.P.C.---Connotation---Police at the time of search has to be accompanied by two persons who should be other than Police Officials---Words and phrases--- Recovery.
' The intention of the law-makers was that the Police Officers at the time of search would be accompanied by two persons who should be other than Police Officials.
' The provisions of section 103, Cr.P.C. Is designed as a safeguard against possible plantation of property and consequent false implication of an accused person. Section 103, Cr.P.C. Makes it mandatory upon the officer about to make a search under Chapter VII to call upon two or more respectable inhabitants of the locality in which the place to be searched is situated to attend and witness the search. The section used the word ' shall call' and grave doubt would be cast on the whole transaction, if this provision is breached. The purpose of section 103, Cr.P.C. Is to ensure that the testimony given in Court in regard to the result of a search should not depend upon the Police Officer alone but also upon the evidence of independent persons and that all possibility of mischief be minimised by the availability of independent persons and no one should be at the mercy of only Investigating Officer."
(iii) Muhammad Boota v. The State 1997 PCr.LJ (Lahore) 1974.
' An Honourable Division Bench of the Lahore High Court, consisting of their Lordships Mr. Justice Muhammad Nawaz Abbasi and Mr. Justice Muhammad Islam Bhatti, JJ. Held that:--
(a) Control of Narcotic Substances Ordinance (XIII of 1996)--- ----Preamble---Applicability of Ordinance---Control of Narcotic Substances Ordinance, 1996 is applicable only to narcotic drugs as defined therein and described in the Schedule and not to intoxicants generally.
(c) Criminal Procedure Code (V of 1898)--- ----S. 497(2)---Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3/4---Control of Narcotic Substances Ordinance (XIII of 1996), S.9---Bail, grant of---Allegations against accused were that he was selling "Charas" and 525 grams of "Charas" was recovered from him, but in the absence of Expert's opinion it was not clear that it was in fact "Charas"---However, if ultimately the "Charas" recovered from the accused was found a narcotic drug at the trial, the maximum sentence provided under S.9 of the Control of Narcotic Substances Ordinance, 1996 was seven years--- Principle of the grant of bail in the offence not falling within the prohibitory clause might not be strictly applicable to the narcotic field but in the cases which needed further inquiry to ascertain the nature of offence with which the accused was being charged, bail in terms of S.497(2), Cr.P.C.
Could claim as of right---It was yet to be determined whether the offence allegedly committed by the accused fell within the ambit of the Control of Narcotic Substances Ordinance, 1996 tribal by the Special Court or was to be tried under the Prohibition (Enforcement of Hadd) Order, 1979--- Accused's case beini one of further inquiry to bail a cording
(iv) Muhammad Usman v. The State 1998 PCr.LJ (Lahore) 370.
' It was held by his Lordship Mr. Justice Khalilur Rehman Ramday, an Honourable Judge of Lahore High Court as under:-- ' Criminal Procedure Code (V of 1898)--- ----S. 497---Prohibition (Enforcement of Hadd) Order (4 of 1979), Art.3/4---Control of Narcotics Substances Ordinance (XLVII of 1995), S.9-C---Bail, grant of---Accused appeared to be a young boy and had no previous record---Ground existed for further inquiry also into guilt of accused--- Accused, was released on bail, in circumstances.
5. In view of the abovementioned authorities it can be safely concluded that the Sessions Judge did not bother to read the case-law cited before him or that he simply ignored the same with contempt, after having read the same.
6. The Sessions Judge is accordingly advised to remain careful in future and see that the law laid down by the superior Courts is followed in letter and spirits failing which he might be proceeded against under the relevant provisions of the Contempt of Court Act.
' Copy of this judgment shall be given by my Private Secretary to the Registrar with the directions that all the Sessions Judges/Additional Sessions/ Judicial Magistrate, in the N.-W.F.P., be instructed to follow the decisions announced by the superior Courts in letter and spirit. However, if the facts of the cases referred before him are different than the case in their hand then in that case the same should invariably be distinguish by giving valid/detailed reasons.
8. In view of what has been stated above, this bail petition is accepted.
' The petitioner shall be released forthwith, if not required in any other case, C provided he furnishes bail bonds in the sum of Rs,10,000 (Rs, ten thousand) with two sureties, each in the like amount, to the satisfaction of the Additional Registrar (Judicial) of this Court.
9. The Additional Registrar shall see that the sureties are respectable persons and are men of means having sufficient property in their names and bail from the settled areas of District Peshawar. Attested copy of the property documents/identity cards of the sureties shall be obtained by the Additional Registrar (Judicial) of this Court for record.