' Pursuant to an authentic information that a narcotics seller namely Abdullah Shah son of Faridullah Shah resident of Utmanzai, District Charsadda, is present in the limits of "Khawar Hazarkhani", Peshawar and engaged in selling narcotics, a police party comprising Hassan Khan, S.H.O. Police Station Yakatoot and others, proceeded to the spot on 12-3-2002 and on reaching there at 4-30 p.m. Found the appellant busy in his business. From the personal search of the petitioner, a plastic bag containing "Charas" and heroin was recovered from the fold w of the trouser of the petitioner. The Charas and heroin were weighed which were found 400 grams and 25 grams respectively. The petitioner, was also found in possession of a .30 bore pistol with 50 live cartridges and a cash amount of Rs,170. The contraband articles were taken into possession and sealed into a parcel in presence of marginal witnesses. Four grams of Charas and one gram of heroin were separated from the lot and sent to the Chemical Examiner, Peshawar for report. The petitioner was arrested and a case under section 9, Control of Narcotics Substance Act, 1997 read with section 13, Arms Ordinance was registered against him vide F.I.R. No,149, dated 12-3-2002.
Police Station Yakatoot, Peshawar.
2. The petitioner submitted an 'application for grant of bail which was rejected by learned Additional Sessions Judge, Peshawar by his order, dated 27-3-2002 with the observation that the petitioner is directly charge in the F.I.R.; that huge quantity of Charas and heroin has been recovered from his possession; that the recovery memo. Supports the version of the prosecution and that the offence is heinous and falls within the prohibitory clause of section 497, Cr.P.C. The petitioner feeling aggrieved, has approached this Court with the similar prayer.
3. Mr. Naveed Akhtar, Advocate for Rs,the petitioner in support of the bail application vehemently contended by emphasizing that the petitioner has falsely and maliciously been involved in the case on the basis of wholly false and fabricated version which is apparent from the bare reading of the F.I.R. He also contended that Investigating Officer did not make any effort to associate the persons present on the spot or residents of the locality, which has made the recovery doubtful. The learned counsel reiterated that the provisions of section 103, Cr.P.C. Are mandatory in nature and if it is not possible to fulfil the conditions of the said section, Investigating Officer must account for such non-compliance. Concluding the arguments the learned counsel submitted that the petitioner is in jail ever since his arrest on 12-3-2002; that investigation of the case is almost complete and no useful purpose would be achieved in case the petitioner is not admitted to bail and allowed to remain in jail; that the petitioner is not a previous convict and that report of the Chemical Examiner is still awaited on account of which the petitioner is entitled the relief of bail. In support of his contentions, he relied on Hadi Bux alias Hadoo v. The State 2000 PCr.LJ 714,Tahir v. The State 2000 PCr.LJ 949, Nauroz Khan alias Tour v. State 2000 PCr.LJ 1222, Liaqat Ali v. The State 2000 PCr.LJ 1317 and Muhammad Ashraf v. The State 2000 PCr.LJ 917 (Peshawar).
4. Conversely, Ms. Musarrat Hilali, Additional Advocate-General for the State opposed the bail application and contended that as huge quantity of Charas and heroin in addition to an unlicensed pistol of .30 bore with 50 live cartridges has been recovered from sole possession of the petitioner in presence of marginal witnesses, the petitioner is not entitled to the dividend of bail and provisions of section 103, Cr.P.C. Are not applicable in view of section 25 of the Control of Narcotics Substances Act, 1997. To substantiate the pleas, she placed reliance on Syed Asif Ali v.
The State 2001 PCr.LJ 331.
5. After having given my mature consideration to the arguments of learned counsel for the parties with reference to the material on record and the case-law cited at the Bar, I am of the view that the main ground urged in support of the bail application i,e, non-compliance of formalities of section 103, Cr.P.C. Is not available to the petitioner and the recovery is not doubtful. The provisions of section 103, Cr.P.C. Has no application to the narcotic cases as per provision contained under section 25 of the abovementioned Act. Applicability of provisions Of section 103, Cr.P.C. Has been excluded in view of provision of section 25 of the Act. Fida Jan v. State 2001 SCMR 26. Even otherwise it is not absolute requirement that in every case witnesses of the public must necessarily be produced as it depends upon the facts of each case. Police officials are as good witnesses as any person from the public provided no animosity is alleged and proved against them. Naseebullah v.
The State 2002 M LD 241 and Muhammad Farooq Afridi v. The State 2002 PCr.LJ 196.
6. In the instant case, the petitioner is directly nominated in the F.I.R. For an offence which carries punishment falling under the prohibitory clause of section 497, Cr.P.C. The petitioner has been apprehended at the spot and large quantity of Charas and heroin has been recovered from his possession in addition to an unlicensed pistol of .30 bore and 50 live cartridges of the same bore. A recovery memo. To this effect has been prepared at the spot which is duly witnessed by two police officials, included in the contingent of complainant Hassan Khan, S.H.O. All these circumstances are sufficient to provide grounds for believing that the petitioner is prima facie connected with the offence charged with. I may observe here that every hypothetical question which may creep into the mind and which could be resolved only after recording the evidence and during the trial would not make the case that of further inquiry. The case of further inquiry would only be made out when the data collected by the prosecution is not sufficient to provide reasonable grounds for believing that a prima facie case existed against the petitioner.
7. The discretion found to have been exercised properly by the learned lower Court in refusing bail to the petitioner, the application fails which is hereby rejected and bail is declined to the petitioner.
However, the prosecution is directed to submit challan against the petitioner within fifteen days and the learned trial Judge shall conclude the trial as expeditiously as possible, not exceeding six months.