' The petitioners stand charged for having committed an offence punishable under section 9 of the Control of Narcotic Substances Act, 1997 vide F.I.R. No,25, dated 2-8-1999 registered at Police Station A.N.F., Kohat.
2. After having failed to procure bail from the Judge, Special Court, Kohat (Malik Mujtaba Ahmad), the petitioners have now approached this Court for the redress of their grievance alleging that they are innocent, falsely charged and thus, entitled to be enlarged on bail not as a matter of grace but as a matter of right.
3. Mr. Jehangir Khan, Advocate learned counsel for the petitioner and Mr. Tariq Khan Kakar, Advocate learned counsel for State/A.N.F. Present and heard. Record of the case perused.
4. The contention of the learned counsel for the petitioners, that the provisions of section 103, Cr.P.C. Were not complied with in this case and, therefore, the petitioners are entitled to be released on bail, is without any force in view of the decisions of the Honourable Supreme Court of Pakistan in the following cases;--
(i) PLD 1996 SC 67 ' Present: Mr. Justice Sajjad Ali Shah, C.J., Mr. Justice Ajmal Mian, Mr. Justice Fazal Elahi Khan, Mr. Justice Manzoor Hussain Sial and Mr. Justice Mir Hazar Khan Khoso (Supreme Court of Pakistan)
' Muhammad Azam---Appellant v. The State Respondent. (a) Criminal Procedure Code (V of 1898- -- ----S. 103---Bare perusal of 5.103 shows that it applies with full force when search is to be made of place which is in a locality---It can be said that 5.103 is relatable to place and not to person if place is known where search is to be made and that place is situate in a locality which is inhabited by people then it is necessary to join two or more respectable persons from that locality to witness search.
(c) Ibid.... ----S. 103---Requirement of examining two witnesses from the locality as contained in 5.103 would not apply to a running vehicle which is stopped at some place where there are no houses in vicinity and search is made for purpose of recovery.
(ii) 1999 SCM R 1367 ' Present: Irshad Hasan Khan, Raja Afrasiab Khan and Muhammad Bashir Jehangiri, JJ.
' State---Appellant v. Muhammad Amin---Respondent (b) Criminal Procedure Code (V of 1898)--- ----S. 103---Customs Act (IV of 1969), S.156(1)(8)---Search in presence of public witnesses when not necessary-Provisions of S.103, Cr.P.C. Do not apply if the recovery is not made in pursuance of search of a house, but is made elsewhere, for instance on the Highways, road sides or the public places like Railway Stations, bus stands or Airports."
5. In another case titled Muhammad Zaman v. State and another reported as 1999 PCr.LJ 797 I had held as under:-- ' Criminal Procedure Code (V of 1898)--- ----S. 497---Bail---Grant. Of---Prayer for---Offence under S.3/4 of Prohibition (Enforcement of Hadd) Order, 1979 read with S.9 of Control of Narcotic Substances Act, 1997---Petitioner stands charged for having committed an offence which falls within prohibitory clause of S.497, Cr.P.C. As he was caught red-handed while he possessed contraband Charas---This fact disentitles him to get concession of bail---Bail application rejected.
6. Even otherwise the contention with regard to non-association of independent witnesses with the search and recovery cannot be raised/pleaded in view of the provisions of section 25 of the Control of Narcotic Substances Act, 1997 as it has categorically excluded the application of section 103, Cr.P.C. To the search 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."
7. Since a special procedure has been laid down and a special provisions has been made regarding the search, therefore, general provision shall not apply to the said subject. If an authority is needed I am supported by the following case:-- ' 1999 PCr.LJ 728 (Peshawar)
' Before Qazi Muhammad Farooq and Malik Hamid Saeed, JJ. Buner Gul---Petitioner v. The State--- Respondent
(a) Control of Narcotic Substances Act (XXV of 1997)--- ---S. 25---Criminal Procedure Code (V of 1898), S.103---Search and recovery---Non-association of independent witnesses-- Validity---Held, under S.25, Control of Narcotic Substances Act, 1997, application of S.103, Cr.P.C.
Having been categorically excluded there was no need to associate independent witnesses Interpretation of statutes--- ----When in an enactment of a special procedure has been laid down and a special provision has been made on a particular subject then a general provision does not apply to that subject.
8. As far as the contention of the learned counsel for the petitioners that both the petitioners being of old age, more than 50 years, is concerned, I am afraid that old age by itself is not a ground on which the bail shall have to be granted under all circumstances. The petitioners herein, it may be stated, even do not qualify to be of old age. Reliance is placed on the following case decided by the Honourable Supreme Court of Pakistan:-- ' 1979 SCM R 114 ' Present: Karam Elahi Chauhan and Nasim Hasan Shah, JJ. Hakim Ali and 3 others---Petitioners v.
The State---Respondent
(c) Criminal Procedure Code (V of 1898)--- ----S. 497(1) proviso---Petitioner though 70 and 80 years old vet not shown to be sick or infirm--- Concession of bail envisaged in proviso, held not attracted in circumstances."
9. This bail petition is devoid of any substance and is accordingly dismissed.