Rizwana Bibi Vs The State

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IN THE PESHAWAR HIGH COURT,

BANNU BENCH

(Judicial Department)

Cr.Misc:BA No.385-812025

Rizwana Bibi Vs The State

ORDER

Date of hearing 0 .2025

For petitioner(s): Mr. Farooq Khan Sokari Advocate a For State: Mr. Naiib Ullah, A.A.G.

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MUHAMMAD TARIO AFRIDI. J.- The accused / petitioner Rizwana Bibi seeks post arrest bail in case FIR No.795, dated 03.08.2025, registered under Section 9(1)3(c) of the Khyber Pakhtunkhwa Control of Narcotic Substances Act, 2}lg at Police Station Saddar, Bannu.

2.Precisely, the facts of the case are that on 03.08.2025, at about 09:30 hours, a police patrol headed by Aman Ullah Khan, SHO, received spy information that one Rizwana Bibi daughter of Muhammad Ashraf, resident of Flinjal Amir Khan, presently residing at Fatima Khel behind the Judicial Complex, Bannu, was planning to smuggle narcotics to Karachi. Acting upon this information, the SFIO obtained a search warrant from the Judicial Magistrate and, accompanied by a police contingent, including lady constables, conducted a raid on the house of the said accused. During the raid, lady constable Asia No.375 apprehended a veiled woman carrying a bag in her right hand (Ghafoor Zaman) (S.8.) l-lon'ble Mr. Justice Muhammad'tariq Afiidi

inside the raided house. Upon inspection of the said bag, ten packets of charas, weighing 14,421 grams in total, were recovered. The lady constable further conducted the physical search of the accused, which led to the recovery of two more packets of charas, weighingZ,4l4 grams, wrapped in a clothing bag, from her possession. The recovered contraband was taken into possession vide recovery memo of even date. The accused was affested. Cursory videography of the process of search, seizure, and arrest was made and saved in a memory card. A murasila was prepared and dispatched to the police station, whereupon the captioned case was registered.

3.Arguments heard. Record perused.

4 4. Perusal of the record reveals that the recovery was allegedly effected on 03.08.2025, while the sample parcels of the recovered narcotics were sent to the Forensic Science Laboratory (FSL) on 07.08.2025. The relevant provision that relates to the dispatch of samples for testing or analysis to the FSL is contained in Rule 4(2) of the Control of Narcotic Substances (Government Analysts) Rules ,2001. It provides that the samples may be dispatched for analysis under the cover of a Test Memorandum specified in Form-I at the earliest, but not later than seventy-two hours after the seizure. In the instant case, as noted above, the sample parcels were sent to the FSL beyond seventy-two hours after their seizure. I am conscious of the fact that Rule aQ) of the Control of Narcotic Substances (Government Analysts) Itules, 2001 is directory in nature, and that its non-compliance is not, by itself, fatal to the prosecution case. However, as the delay has a direct nexus with the safe custody of the case property and secure transmission of the sample parcels to the FSL, therefore, the prosecution is yet to (Ghafoor Zaman) (S.B.) I-lon'ble Mr. Justice Muhammad Tariq Afridi

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establish not only the factum of recovery, but also its safe custody and secure transmission to the FSL. At this stage, in the absence of any plausible explanation, the aforesaid discrepancy makes the instant case arguable for the purpose of bail. Reliance can also be placed on Sagheer Ahmed v. The State (2024 SCMR 913), wherein the Supreme Court observed:

6.The record shows that FIR was registered on 06.08.2023 and the accused was arrested on the same day. While, as per the report of the Punjab Forensic Science Agency dated 27.10.2023, the sample of the charras was received by Forensic Science Laboratory on 08.09.2023, after a delay of more than a month. The provisions relating to the sending of samples to the forensic Science Laboratory are provided in Rule 4(2) of Control of Narcotic Substances (Government Analysts) Rules, 2001, /0 which provides that the samples may be dispatched for analysis under cover of Test Memorandum spccified in Form-I at the earliest, but not later than seventy-two hours of the seizure. There is nothing on record to show to whom the alleged recovered narcotics were handed over at the police station for safe custody during that period. The fact of the safe custody of the recovered narcotic substance is to be established or proved by the prosecution during the trial; however, the above-noted unreasonable delay of more than one month could be considered at the time of deciding the bail, which makes the case of the petitioner one of further inquiry.

5.Moreover, the record reveals that the Magistrate had authorized the ASI-IO to search the house of Rizwana Bibi and to produce any recovered narcotics with the warrant to the Court duly endorsed to certiff the action taken. The record funher reveals that Aman Ullah, SHO of Police Station Saddar, was not authorized under search warrant to search the house of lady accused, yet in blatant disregard of law, he illegally entered the premises and arrested the accused / petitioner. The (Ghafoor Zaman) (S.B.) Hon'ble Mr. Justice Muhammad Tariq Afridi

SHO neither retumed the warrant to the Court nor produced the allegedly recovered narcotics, thereby committing a disrespectful violation of the Court's explicit directions contained in the search warrant. The prosecution has yet to furnish any explanation orjustification at trial for the search of the lady's house in violation oflaw and directions ofthe Court and the alleged recovery of narcotic by the SHO (an unauthorized police officer) instead of the ASHO, who alone was authorized under the Magistrate / Court directions, made in violation of the express mandate ofthe Court.

6, A1though, the prosecution has relied merely upon cursory video evidence recorded via mobile phone and even that without placing on record any still photographs extracted 4 therefrom, therefore, the evidentiary value of such material can only be determined after a full-fledged trial, subject to its admissibility and verification. Moreover, the petitioner is a woman and has no previous conviction. Investigation in the present case is complete, and the petitioner is no longer required for further investigation' It is well settled that grant of bail does not amount to acquittal, and any erroneous concession of bail can always be corrected by awarding appropriate punishment in the event of conviction, however, no adequate reparation can be offered to an innocent person for his/her unwarranted incarceration, notwithstanding their eventual acquittal after a protracted trial'

7.For these reasons, I am convinced to allow this petition and admit the petitioner to bail, provided she fumishes bail bonds in the sum of Rs.3,00,000/- (Rupees Three Hundred Thousand) with two sureties, each in the like amount, to the satisfaction of the concemed Judicial Magistate / MOD, who (Ghafoor Zaman) (S.8.) Hon'ble Mr. Justice Mu hammad Tariq Afridi

n shall ensure that the sureties are local, reliable, and men of means. Order accordinglY.

8.The foregoing observations are purely tentative, and the trial Court shall decide the matter independently, strictly in accordance with law and on its own merits, without being influenced by any observation made herein' lrL Announced 08.09.202s w

JUDGE

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(Ghafoor Zaman) (S.B.) Hon'ble Mr. Justice Muhammad Tariq Afridi