'Having been involved in case registered vide F.I.R. No,686, dated 1-10-2001 under sections 6, 7 and 9 of the Control of Narcotic Substances Act at Police Station University Town, the accused-petitioner applied for his release on bail before the Special Court but his application was rejected vide order, dated 23-10-2001. He has now moved this Court for his release on bail.
2. Farid Hussain Bangash, Inspector/S.H.O., Police Station University Town on 1-10-2001 at 11-00 hours was present alongwith other police party at Tehkal Payan Chowk. A person was found in suspicious condition. He was asked to stop. On enquiry he told his name to the police party. On personal search, from fold of his Shalwar contraband Charas was recovered which on weighing was found to be 2 Kgs. Four grams of Charas were separated and sent to F.S.L. For analysis. Abovementioned case was registered against the accused-petitioner.
3. I have heard Mr. Akhtar Zaman, the learned counsel for the petitioner who argued that the provisions of section 103, Cr.P.C. Were violated at the time of search as no independent witness was associated when the alleged recovery was made. Reliance in this regard was placed on Nazim Hussain v. The State 1998 PCr.LJ 164.
4. It was further argued that only four grams of contraband Charas were sent to F.S.L. For analysis whereas the prosecution was under obligation to send 2/3rd of the contraband to F.S.L. For analysis.
Reliance in this regard was placed on Nasir Khan v. State 1997 M LD 1473.
5. On the other hand Mr. Sardar Shaukat Hayat, Additional Advocate-General appearing for the State argued that since the recovery was effected in a Chowk on the road side, therefore, provisions of section 103, Cr.P.C. Were not attracted. Reliance was placed on Buner Gul v. State 1998 PCr.LJ 728. It was further stated that the recovery was duly witnessed by two police officials and the result of the F.S.L. Also shows that the recovered contraband was Charas. He lastly argued that since there is a prima facie case connecting the accused-petitioner with the commission of offence, therefore, he is not entitled to bail.
6. I have heard the learned counsel for the parties and perused the record.
7. Huge quantity of Charas was recovered from the fold of Shalwar of the accused-petitioner as per opinion of F.S.L., the recovered contraband is Charas. So far as association of independent witnesses at the time of recovery is concerned, it is a matter of common knowledge that due to fear of enmity people hesitate and are reluctant to be named as witness in such-like case. There is no mala fide or between the witnesses of recovery and the accused-petitioner. The said witnesses have supported the alleged recovery from the possession of accused. So far as the compliance of provisions of section 103, Cr.P.C. Is concerned, since the recovery was affected at road side, therefore, the provisions of section 103, Cr.P.C. Are not attracted. Reliance in this regard is placed on State v. Muhammad Amin 1999 SCM R 1367 wherein it was held:-- "Be that as it may, the search of the baggage and person at the Airport or on the Highways in generally not amenable to the strict compliance of section 103 of the Cr.P.C. It is by now settled law that provisions of section 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 or the road sides or the public places like Railway Stations, Bus Stands and the search of baggage or of the person at the Airports. Assuming for the sake of argument but without conceding that provisions of section 103
(ibid) apply to the search of the baggage or of person, still its application has been restricted on the principles of interpretation."
Moreover, under section 25 of the Control of Narcotic Substances Act, 1997 application of section 103, Cr.P.C. Has been categorically excluded, therefore, there was no need to associate independent witnesses. In Buner Gul v. State 1999 PCr.LJ 728 it was held:-- "The contention with regard to non-association of independent witnesses with the search and recovery cannot be raised in the face of section 25 of the Control of Narcotic Substances Act, 1997 which has categorically excluded application of section 103, Cr.P.C. To the searches made under the Act. It reads 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.'
' It is a settled principle of the construction of statutes that when in an enactment 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. In view of the material available on record there exist reasonable grounds for believing that the petitioner has been guilty of an offence punishable with death under section 9(c) of the Control of Narcotic Substances Act, 1997. Since the punishment provided for the offence falls under the prohibitory clause of section 497, Cr.P.C. And embargo contained in subsection (1) of section 51 of the Control of Narcotic Substances Act, 1997 is fully attracted in the case in hand, therefore, I am not inclined to release him on bail. This bail application is dismissed. Challan of the case is complete. The prosecution is directed to submit the challan in the competent Court within a fortnight and the learned trial Court is directed to conclude the trial within four months, failing which the accused-petitioner shall be entitled to repeat his bail application before the trial Court.