SALEEM vs The STATE

' SHAH JEHAN AKHUNDZADA, J.-Accused-petitioner Saleem involved in case F.I.R. No,65 dated 18-3- 2013 under section 9(c) Control of Narcotic Substances Act, 1997 read with section 13 Arms Ordinance registered at Police Station, Jarma District Kohat was refused bail by the learned Additional Sessions Judge-III. Kohat vide his order dated 2-4-2013. So he has approached this Court for his release on bail.

2. Brief facts of the case are that on 18-3-2013 Said Khan Inspector/S.H.O. Was present in the Police Station and received an information that Saleem son of Zewa Khan resident of Mir Banda had brought huge quantity of Charas to his house and he would smuggle it towards Punjab any time.

On this information the S.H.O. Along with his other police contingents raided the house of the accused where he found him present. On conducting search of his residential room, he found a bandolier containing unlicensed .30 bore Pistol along with spare charger and 15 rounds of .30 bore and on further thorough search of it, he found a weighty plastic beg white in colour beneath the cot lying in the said room, wherefrom he recovered a black plastic bag and found therein Charas garda weighing 6000 grams and opium weighing 30 grams. He took the same into his possession vide recovery memo placed on file and arrested the accused. He separated 5/5 grams from the packet of Charas and Opium and packed and sealed it into a different parcels for analysis through FSL while remaining stuff was sealed into separate parcel. He drafted Murasila and sent the same to the Police Station where on the basis of it F.I.R. No,65 was registered under the above sections of law.

3. I have heard the learned counsel for the accused-petitioner as well as the learned Deputy Advocate-General for the State and have also gone through the record.

4. It is well-settled principle of law that at bail stage only tentative assessment has to be made and deeper appreciation has to be avoided. It is an admitted fact that in the instant case despite prior information no search warrant under section 20 of C.N.S.A, was obtained by the Inspector/S.H.O.

Before entering into the house of the accused-petitioner.

5. The S.H.O. Who made raid upon the house of the accused has not at all recorded the grounds and reasons, why he has avoided to obtain a search warrant under section 20 of C.N.S.A. The purpose of the provisions of section 20 of C.N.S.A. Into safeguard the right of privacy of a citizen which should not be allowed to be violated at the whims of a Police Officer. In this regard reliance is placed on "Raees Khan v. The State" (2005 PCr.LJ 76 Peshawar) and "Waris Khan v. The State" (2000 PCr.LJ 1225).

6. The complainant has claimed to have effected the recovery on the basis of prior information but no, witness from the locality was associated with the recovery proceedings. The august Supreme Court of Pakistan in a case "Hakim Mumtaz Ahmad and another v. The State PLD 2002 Supreme Court 590) has held as under:- "Despite earlier information respectable persons of the locality were not associated in recovery proceedings carried out against the accused. Allegations against accused, thus,- needed further inquiry".

In this regard (2003 SCM R 881) is also referred for placing reliance on it in support of the above proposition. Hence the above facts and circumstances make the case of the accused-petitioner one of further inquiry entitling him the concession of bail under subsection (2) of section 497, Cr.P.C.

7. Resultantly, this bail application is accepted and the accused-petitioner is ordered to be released on bail provided each of them furnishes bail bond in the sum of Rs,1,00,000 (Rupees one Lac) with two sureties each in the like amount to the satisfaction of the learned Illaqa/ Judicial Magistrate. The sureties must be local, reliable and men of means.

' The above are the reasons of my short order announced on 3-5-2013.