' Mr. Muhammad Amin Khan Khattak, Advocate, learned counsel for the petitioner and Kh. Azhar Rashid, learned Assistant Advocate-General, present and heard. Record of the case perused carefully.
2. Contraband heroin powder weighing 19-1/2 Kgs, and charas weighing 7 Kgs. Were recovered from the possession of the petitioner and a case was registered under section 3/4 of the prohibition (Enforcement of Hadd) Order, 1979 read with sections 6 to 9 of the Control of Natcotic Substance Act, 1997, vide: F.I.R. 380, dated 12-9-1998, at Police Station Akora, District Nowshera.
3. After having, failed to procure bail from the Judge, Special Court Nowshera (Mr. Jehangir Khan) the petitioner has now approached this Court for the redress of his grievance alleging therein that he is innocent, falsely charged and therefore, entitled to be enlarged on bail.
4. The punishment provided for the offence mentioned above is either death or life imprisonment as the quantity of the contraband narcotic/heroin powder is more than one kilogram. The petitioner, in the circumstances. Cannot be released on bail as laid down in section 51 of the Control of Narcotic Substance Act, 1997. The same is reproduced as under:-- "Section 51. No bail to be granted in respect of certain offences:-- (1) Notwithstanding anything contained in sections 496 and 497 of the Criminal Procedure Code, 1898 (V of 1898), bail shall not be granted to an accused person charged with an offence under this Act or under any other law relating to narcotics where the offence is punishable with death.
(2) In the case ' of other offence punishable under this Act, bail shall not be normally granted unless the Court is of the opinion that it is a fit case for the grant of bail and against the security of a substantial amount."
5. The contention of the learned counsel for the petitioner that the provisions of section 103, Cr.P.C.
Were not complied with in this case and, therefore, the petitioner is entitled to be released on bail is without any force in view of decision of the Hon'ble Supreme Court of Pakistan (Full Bench) comprising of the following five Hon'ble Judges:-
(1) His Lordship Mr. Justice, Sajjad Ali Shah, C.J.
(2) His Lordship Mr. Justice, Ajmal M ian
(3) His. Lordship Mr.Justice, Fazal Ilahi Khan,
(4) His Lordship Mr.Justice Manzoor Hussain Sial and
(5) His Lordship Mr. Justice, Mir Hazar Khan Khoso, JJ. ' in case titled Muhammad Azam v. The State reported as PLD 1996 SC 67. It was held:--
(b) Criminal Procedure Code (V of 1898)
' S. 103... West Pakistan Arms Ordinance (XX of 1965), Ss.13 & 20...Application of S.103, Cr.P.C... Search...
Recovery... Evidence..., Provisions of 5.103, Cr.P.C. Do not apply to a running vehicle but apply to a fixed place to be searched which is already known...(Criminal trial) (P.75) A.
6. In another case, titled Mushtaq Ahmad v. The State, reported as PLD 1996 Supreme Court 574, the Hon'ble Judges of the Supreme Court, while discussing the provisions of section 103 of Criminal Procedure Code, observed:--
(b) Criminal Procedure Code (V of 1898).103... Search....Recovery.... Principles enumerated.
(1) That section 103, Cr.P.C. Relates to a search of a place situate in a locality and not to a search of a person".
7. Even otherwise, the contention with regard to non-association of independent witnesses with the search and recovery cannot be raised/pleaded in the presence of section 25 of the Control of Narcotic Substance Act, 1997, as it has categorically excluded the application of section 103, Cr.P.C.
To the searches made under the Act. The same is reproduced as under:- "The provisions of the Code of Criminal Procedure, 1898, except those of section 103, shall, mutatis mutandis, apply to all searches and arrests in so far as they are not inconsistent with the provisions of sections 20, 21, 22 and 23 to all warrants issued and arrests and searches made under these sections."
8. Since a special procedure has been laid down and a special provision has been made regarding the search, therefore, general provision shall not apply to the said subject.
9. This bail petition has no substance and is accordingly dismissed.