' The petitioner stands charged for having committed an offence punishable under section 9-B, Control of Narcotic Substances Act, 1997 (Act No,XXV of 1997), vide F.I.R. No,410 registered at Police Station Tank, on 30-9-1999, as 105 grams heroin powder was recovered from his personal search.
The allegation against him is that the C.I.A. Staff, headed by S.-I. Muhammad Iqbal Khan, had stopped him, at the colony gate, and his personal search (by P.W. Bahadar Khan F.C.) led to the recovery of the heroin powder in question, from a plastic bag, wrapped in a cloth and tied with one of his legs i,e,, right knee.
2. After his arrest the petitioner approached the Additional Sessions Judge, Tank (Mr. Muhammad Ashraf Khan) for bail who refused to oblige and rejected his bail application vide his order, dated 14-10-1999.
3. Hence this petition for bail, inter alia, on the following grounds:--
(i) that the personal search of the petitioner was not conducted according to the mandatory provisions of section 103, Cr.P.C. And, therefore, the entire proceedings had become void;
(ii) that the case of the petitioner does not fall within the prohibitory clause of section 497, Cr.P.C.
And he is, therefore, entitled to be released on bail; and
(iii) that the C.I.A. Staff had no jurisdiction/authority to investigate the case, therefore, all the proceedings initiated against the petitioner were ab initio void.
4. Miss Shahida Sadozai, Advocate learned counsel for the petitioner and Syed Saeed Hussain Sherazi learned Assistant Advocate-General for respondent/State present and heard. Record of the case perused.
5. It may be stated at the very outset that the first contention of the learned counsel for the petitioner, mentioned above, has no substance because the provisions of section 103, Cr.P.C. Shall be attracted only when a "place", situated in a locality, is to be searched. It would, therefore, be enough to mention here about the case titled Muhammad Azam v. The State PLD 1996 SC 67 decided by the Honourable Supreme Court of Pakistan wherein it was held:-- "Section 103, bare perusal of section 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 section 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 that it is necessary to join two or more respectable persons from that locality to witness search."
6. As far as the second contention of the learned counsel for the petitioner is concerned, I agree with him that the offence punishable with imprisonment which is less than 10 years "bail and not the jail" is the rule. It was held by the Honourable,Supreme Court of Pakistan in case titled Tariq Bashir and 5 others v. The State reported as PLD 1995 SC 34 which is as under:-- ----Ss. 496 & 497---Bail---Grant of bail in bailable offence is a right while in non-bailable offences the grant of bail is not a right but concession/grace-Grant of bail in offences punishable with imprisonment for less than 10 years is a rule and refusal an exception."
7. Now, turning to the 3rd contention of the learned counsel for the petitioner, it would be sufficient to remark that under section 1576(1), Cr.P.C. Only an Officer Incharge of a Police Station is the authority to investigate a cognizable case. The C.I.A. Personnel has no such authority. It was, therefore, that the Honourable Supreme Court of Pakistan in case titled State through Advocate- General, Sindh v. Bashir and others reported as PLD 1997 SC 408, in crystal clear words held:-- "Only an Officer incharge of the police station having jurisdiction over the local area within the limits of a police station can investigate a cognizable offence or any other person covered by the definition of the officer incharge of a police station given in clause (p) of section 4, Cr.P.C. Which, in the absence of officer incharge of a police station, includes officer incharge present at the station house who is next to the officer incharge of the police station and is above the rank of the constable or when the Provincial Government so directs, any other police officer so present. The above provision does not include C.I.A. Personnel, therefore, they have no power to investigate a cognizable offence." (The underlining is mine).
8. It is not disputed rather it is admitted by the Assistant Advocate-General that the investigation were conducted in this case by the C.I.A. Staff. In the circumstances, without dilating upon the merits of the case, at this stage, I am of the view that on this score, too, the petitioner is entitled to be released on bail.
9. This bail petition is accepted. 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 (Rupees one lac) with two sureties, each in the like amount, to the satisfaction of the Additional Registrar of this Court.
10. The Additional Registrar shall see that the sureties are respectable persons, men of means, having sufficient property in their names and hail from the settled areas of District Tank/D.I. Khan.
Attested copies of their property documents/identity cards shall be obtained and placed -on file for record.