' On the basis of secret information, received from an informer, A.S.I. Shakirullah/complainant, who was on Gasht of the Illaqa alongwith Police Party, rushed to the Workshop which belonged to accused Shaukat son of Muhammad Akram and get hold of the Suzuki Pickup (Registration No,ADB-2735). At that time accused Shakeel Khan son of Muhammad Akram, the real brother of Shaukat Ali, the owner of the Workshop, was busy in carrying out some work/repairs in the Suzuki.
2. When the said Suzuki was searched secret cavities were found in the body of the vehicle. The secret cavities were opened and huge quantity of opium/charas, of foreign origin, as detailed in the recovery memo. Was recovered.
3. Since accused/petitioner Shakeel son of Muhammad Akram was present in the Suzuki, therefore, he was arrested. However, his brother namely accused petitioner Shaukat Ali the owner of the Workshop, could not be arrested as he was available there at that time. Later, he too was arrested in this case. Accordingly a case under sections 3 and 4 of the Prohibition (Enforcement of Hadd)
Order, 1979 R/W section 4 S.T.A. Was registered against both the petitioners Vide: F.I.R. No,142 dated 3-3-1998 registered in Police Station, University Town, Tehsil and District Peshawar.
4. After having failed to procure the concession of bail from the Additional Sessions Judge-V, Peshawar (Mr. Muhammad Ayub Khan), the petitioners have now come to this Court for the redress of their grievance saying that both of them are innocent, falsely charged and, therefore, entitled to be released on bail not as a matter of grace but as a matter of right.
5. Mr. Assadulah Khan Chamkani, Advocate assisted by Ms.S. Naz Muhammadzai, Advocate, learned counsel for the petitioners and Kh. Azhar Rashid Asstt: Advocate General for the State present and heard. Record of the case perused.
6. Admittedly, the petitioners have been directly charged for having committed an offence punishable under sections 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 R/W section 4 S.T.A. Vide: promptly lodged F.I.R. No,142 dated 3-3-1998.
7. Again, it is not denied that in pursuance of the secret information received by A.S.I. Shakirullah who was on Gasht of the Maga, huge quantity of "contraband narcotics" of foreign origin was recovered from the secret cavities of the vehicle parked in the premises/workshop of accused/petitioner Shaukat Ali and that too within the site and the presence of accused/petitioner Shakeel Khan (the brother of the petitioner) who was busy working in the vehicle. It may be added here with advantage that this petitioner/accused is the "real brother" of the other petitioner/accused, Shaukat Ali who is the owner of the workshop wherefrom the Suzuki was found and narcotic recovered from its secret cavities.
8. The samples from the recovered narcotic, were sent to the Forensic Science Laboratory for laboratory test. The report of the F.S.L. Would show that the substance so recovered was in fact contraband narcotics i.e, Opium and Charas of foreign origin.
9. The contention of the learned counsel for the petitioner that the provisions of section 103, Cr.P.C.
Were not complied with and, therefore, the entire episode is without jurisdiction and as such null and void, in my opinion, is without any force. It is apparent from the facts of the case in hand that in this case when the secret information was received by A.S.I. Shakirullah, complainant, he was on the Gasht of the Illaqa and therefore, had absolutely no time to waste in getting permission for searching the premises/vehicle because if he had resorted to the procedure then in that case the vehicle could have been removed from that workshop. Moreover, the question as to whether or not C procedure given in section 103, Cr.P.C. Was to be followed in the facts and circumstances of this case would be determined at the time of the trial.
10. Accordingly without dilating upon the merits of the case at this stage, I am of the view that reasonable grounds do exist for believing that the petitioners are connected with the commission of the offence charged with and are thus not entitled to be released on bail. The petition is without any substance and is accordingly dismissed.