' Mr. Sohail Akhtar, Advocate learned counsel for the petitioner and Kh. Azhar Rashid, learned Assistant Advocate-General for State present and heard. Record of the case perused.
2. After having obtained a search warrant the house of the petitioner was raided by Abdur Rasid, S.H.O., of Police Station, Hangue, Tehsil and District Hangue, along with the Police party including Zafarullah Khan and Abdul Hakeem, A.S.Is. The Police party allegedly found the petitioner standing in the courtyard of his house who was holding a 7 MM rifle in his one hand where as a plastic bag in his other hand. The prosecution case is that the petitioner tried to decamp from the house but he was over-powered by the Police party. On demand he could not prove that he was either in lawful possession of the rifle in question or the narcotics, in the plastic bag, which contained 1000 grams of Charas (pukhta), 20 Purris of Charas (garda) weighing 40 grams and 30 Purris of heroin weighing 20 grams. The petitioner was, resultantly arrested.
3. After his arrest the petitioner applied for bail but remained unsuccessful. Hence this petition.
4. The learned counsel for the petitioner contends that the law laid down by the Hon'ble Supreme Court of Pakistan in case titled Advocate-General, Sindh v. Bashir and others (PLD 1997 SC 408) has not been complied with inasmuch as the Police party, headed by the S.H.O., raided the house of the petitioner without associating two respectable persons from the locality. According to the learned counsel for the petitioner the search was, therefore, illegal.
5. The learned counsel for petitioner next contended that the search warrants obtained by the Police were also illegal because the petitioner is charged for having committed offence punishable under section 9 of the Control of Narcotic Substance Act, 1997 and, therefore, the Police was required to take search warrants from the Special Court, in accordance with the provisions of section 20 of the said Act. Which reads as under:---
(1) A. Special Court may issue a warrant for the arrest of any person whom it has reason to believe to have committed an offence punishable under this Act, or for the search whether by day or by night, of any building, place premises or conveyance in which he has reason to believe any narcotic drug, psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed is kept or concealed.
(2) The officer to whom a search warrant under subsection (1) is addressed shall have all the powers of an officer acting under section 21.
6. The third contention of the learned counsel for the petitioner is that till date the prosecution has not obtained the Chemical Examiner Report purposely from the Forensic Laboratory to establish/prove that the items, allegedly recovered from the possession of the petitioner, were in fact Charas/heroine. He stated that on this score too the petitioner is entitled to be released on bail not as a matter of grace but as a matter of right. In this respect he placed reliance on the following cases:---
(1) Criminal Miscellaneous No,995 of 1997, (Sabir Khan v. The State). "In the circumstances, and in the absence of the Chemical Expert's Report, I am of the view that reasonable grounds do not exist for believing that the petitioner is connected with the commission of the offence with which he has been charged and prima facie his case is that of further inquiry within the meaning of section 497 (2), Cr.P.C. The petitioner is, therefore, admitted to bail."
(2) 1998 PCr.LJ (Peshawar) 664. (Raj Wali v. The State). "Criminal Procedure Code (V of 1898) section 497....Prohibition (Enforcement of Hadd) Order (4 of 1979), Articles 3 and 4...Bail, grant of...Chemical Examiner's Report in respect of the contraband material had not been obtained so far by the prosecution...Reasonable grounds, therefore, do not exist for believing that the accused was connected with the commission of the offence with which he was charged accused was released on bail in circumstances on his depositing Rs,25,000 as bail money in the High Court (page 665) A & B."
(3) 1999 PCr.LJ (Peshawar) 558. (Wali Shah v. The State). "Criminal Procedure Code (V of 1898) section 497...Prohibition (Enforcement of Hadd) Order (4 of 1979), Article 3/4...Bail, grant of...
Prosecution/Agency had not so far obtained the Laboratory Report in respect of the contraband liquor...Reasonable grounds, therefore, do not exist for believing that the accused was connected with the commission of the offence...Bail was allowed in circumstances."
7. Confronted with this situation the learned Assistant Advocate-General conceded and rightly so that the Police has not complied with the provisions of section 103, Cr.P.C., read with section 20 of the Control of Narcotic Substance Act, 1997. He also admitted the fact that the Report of the Chemical Examiner has not been obtained by the prosecution/Investigating Officer so far to establish that the items recovered were factually Charas/heroin.
8. Accordingly without going into the merits of the case, at this stage. I am of the view that the petitioner is entitled to the concession of bail in the circumstances of this case because his case has become doubtful. This bail petition is accordingly accepted.
9. The petitioner shall be released forthwith, if not required in any other case, provided he furnishes bail bonds in the sum of Rs,1,00,000 (Rs,One lac only) with two sureties, each in the like amount, to the satisfaction of the Additional Registrar/ Deputy Registrar of this Court.
10. The Additional Registrar/Deputy Registrar shall see that the sureties are respectable persons and are men of means having sufficient property in their names and hail from the settled areas of District Hangu. Attested copies of their property documents/identity cards shall be obtained from them and placed on file for record.
11. A copy of this judgment be sent to the D.I.-G., Police Kohat for onward transmission to the S.P., Kohat/Hangu for information and guidance.