THE STATE Versus MUHAMMAD AFZAL

ORDER

This single order will dispose of both the applications for cancellation of bail, as they are arising out of the one and the same transaction.

As per Murasila, S.I.P. Amir Humza informed A.S.-I. Muzaffar-ud- Din, Anti-Norcotics Force, Gilgit that Muhammad Afzal son of Muhammad Akbar, Shaukat son of Muhammad Ashraf and Muhammad Afzal son of Muhammad Nazir, residents of Gilgit are trafficking in heroin; that the aforesaid persons have gone to Peshawar to bring huge quantity of heroin to Gilgit and they are expected to reach Gilgit that day or tomorrow. Armed with this information, A.S.-I. Muzaffar-ud-Din, at the bidding of group commander, left in the company of H.C. Nasrullah Khan and F.C. Sadaqat Ali for Police Check Post, situated at Raikote Bridge, where they waited for the arrival of the abovementioned accused three in number; that on 28-8-1995 at about 9 a.m. Mahsabrum Bus bearing No.BLN-6395 came from Rawalpindi side and was stopped at the Check Post. Muhammad Afzal son of Muhammad Akbar, resident of Naupura Basin, who is serving in Police Department was in uniform, and his co-accused Shaukat son of Muhammad Ashraf and Muhammad Afzal son of Muhammad Nazir were also present in the said Bus; that in the presence of Gul Daraz son of Ibad Khan, resident of Parri Bungalow Gilgit, Sher Muhammad son of Ghulam Abbas, resident of Hussainabad Skardu an employee of Mahsabrum Bus, Nasrullah Khan, H.C. Sadaqat Ali F.C. (A.N.F.) and A.S.-I Mirza Behlool Incharge of the Check Post Raikote Bridge, personal search of Muhammad Afzal son of Muhammad Akbar was made and from the footwear of accused Muhammad Afzal, heroin of brown colour duly wrapped in a plastic paper was recovered and on weighing, it was found 250 grams. Out of it, 11 grams of heroin was separated for chemical examination and the same were sealed into separate parcels; that recovery memos. were prepared and duly signed by the aforesaid marginal witnesses. Similarly, personal search of Muhammad Afzal son of Muhammad Nazir and Shaukat son of Muhammad Ashraf were also made and heroin was also recovered from them, for which separate cases were registered against them and were challaned to the competent Court of law by the Anti-Narcotics Force, under Article 3/4 Prohibition (Enforcement of Hudood) Order, 1979 vide F.I.Rs. Nos.23/95 and 24/95 respectively.

2. I have heard the learned Advocate-General and District Attorney on behalf of the State and counsel for the accused/respondents at length and have also gone through the record of the case.

3. Keeping into consideration the recovery of 250 grams 'of heroin from accused Muhammad Afzal, while in police uniform and likewise the recovery of 200 grams of heroin from accused Shaukat, his co-confiderate during their personal search, in the presence of marginal witnesses and the fact that the accused were caught red-handed, besides that the quantity of heroin is more than 10 grams for which punishment is imprisonment for life and the report of the Chemical Examiner is also in positive. Prima facie, the accused/respondents are linked with the crime in question.

4. So far the question of compliance of section 103 of the Cr.P.C. is concerned, it may be stated that it was not a search of any place, but the search of a vehicle. It does not come within the ambit of provisions of section 103, Cr.P.C. If any authority is needed, reference can be made to The State-- Appellant v. Jamsheed Ali ---Respondents and 2 others PLD 1994 FSC 11.

5. The upshot of the above discussion is that the learned Sessions Judge, Gilgit did not correctly apply his mind to the facts of the case and arrived at a wrong conclusion by misreading of evidence, as the provisions of section 103, Cr.P.C. are not attracted in the present case. Moreover, the marginal witnesses were picked up from the said plying bus, one of the marginal witnesses is an employee of Mashabrum Bus, the other was a passenger travelling in the same bus belonging to Parri Bungalow Gilgit and the rest of the marginal witnesses were police officials, one of them is the Incharge of the Check Post Raikote Bridge, who could easily be termed as witness of locality. Reference can conveniently be made to Fazal Dad---Appellant v. The State---Respondent 1993 SCMR 164.

6. It is an admitted fact that accused Muhammad Afzal, while in uniform was caught red-handed at Police Check Post Raikote Bridge alongwith his co -accused mentioned above and heroin was recovered from them on their personal search in the presence of marginal witnesses. The net result of the above discussion is that the application for cancellation of bail is allowed and the accused/respondents present in Court are taken into custody and remanded, to judicial lock-up as undertrial prisoners.

N.H.Q./24/Gilgit Bail cancelled,