' This application has been moved by petitioner, Tahir son of Aurangzeb, resident of Garhi Banna, Nawanshar, Tehsil and District Abbottabad, seeking bail in case F.I.R. No,106, dated 16-5-1999 for offence under section 9, Control of Narcotic Substances Act, 1997 read with Articles 3/4 and 24 of Prohibition (Enforcement of Hudood) Order, 1979 of Police Station Nawanshar, Abbottabad, after having been aggrieved of the order, dated 20-10-1999 of Special Judge, Abbottabad.
2. The local police had received information prior to the incident from the residents of the Illaqa that one Mst. Shakila and her son Tahir alongwith one Khurshid alias Panni were dealing in illegal trade of narcotics in Muhallah Garhi Panna, Nawanshar. Upon this complaint and information the S.H.O. Of the Police Station concerned obtained a search warrant from the Judicial Magistrate, Abbottabad on 15-4-1999 but finally raided the house of the petitioner on 16-5-1999 at about 6-30 p.m. During the course of the raid the petitioner namely, Tahir was apprehended at the spot when he Was trying to conceal a plastic bag in the secret cavities of the roof top of his house, the police allegedly pounced upon him and recovered the plastic bag which contained 300 grams of heroin.
A sample of the same was taken and the remaining contraband was sealed in presence of three marginal witnesses. Accordingly the accused was arrested and a case was registered against him.
3. Mr. Tariq Khan Kakar, Special Prosecutor who happens to be present in Court accepts the notice. I have heard him and the learned counsel for the petitioner.
4. Learned counsel for the petitioner contended that the petitioner has been involved in the case with mala fide intention by the local police as according to him the search conducted by the local police was illegal because the authorised Magistrate for the purpose of issuance of search warrant had not been involved in the exercise. He further, contended that after the delay of one month of the issuance of the search warrant the house of the petitioner was raided by the local police with ulterior motive. He further, contended that the sample of the contraband was despatched for analysis on 3-6-1999 at a belated stage, the report of which is, dated 17-6-1999. The learned counsel further contended that the local police has not followed the procedure of the special law that is Control of Narcotics Act, 1997 in its true perspective. He was of the view that if an act was regarded to be done under the law which should either be done in such a manner, or not at all. He, therefore, relied on 1989 PCr.LJ p.599.
5. The record reflects that the local police has involved the petitioner for the offences under two separate statutes firstly, under the Prohibition (Enforcement of Hadd) Order, 1979 and secondly, under the Control of Narcotics Act, 1997. The former law provides lesser punishment while the latter provides life imprisonment, therefore, in view of the settled law, the law which provides lesser punishment shall be taken into consideration for the purpose of bail. However, the bar contained in section 51 of the Control of Narcotics Act, 1997 is applicable only to cases where the offence is punishable with death. In other suitable cases, however, bail could be granted. For reference of the aforesaid proposition guidance is sought from 1999 SCM R p.1271. On merits also the manner in which the heroin was recovered from the possession of the petitioner seems arguable.
Consequently, this petition is accepted and the petitioner is allowed bail in the sum of Rs,1,00,000 (Rupees one lac) with two sureties each in the like amount to the satisfaction of the Illaqa/Duty Magistrate.