' Muhammad Malik, petitioner is accused of having sold one gram heroin to bogus purchaser on 13-4-1986 and subsequently, 50 grams of heroin was recovered from his house. A case was accordingly registered at Police Station Saddar, Gujranwala. The petitioner is in jail since then. His bail plea was declined by the lower Court, hence this application.
2. It is contended that the recovery effected from the house of the petitioner cannot be used against him inasmuch as the alleged house search was conducted against law and that it has been held by this Court in Mukhtar alias Kharo v. State 1988 P Cr. L J 591 that offences under Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order IV of 1979 are non-cognizable if not committed at a public place and since no search-warrant had been obtained from the Ilaqa Magistrate in this regard, therefore, the search being illegal is not actionable. Replying, learned State counsel submitted that 50 grams heroin has been found in possession of the petitioner which is a considerable quantity and cannot be presumed to be planted by the police. Officer and that the procedural defect in carrying out house search could not affect the ultimate decision of the case, therefore, the petitioner who has committed an offence punishable with imprisonment for life should not be released on bail.
3. I have considered the facts and circumstances of the case in the light of arguments of learned counsel for the parties. It is well-known principle of law that if an act is required to be done in a particular manner under the law then it should either be done in such manner or not at all, therefore, it is not correct to say that acts done against law do not materially affect the ultimate decision of a case. In the circumstances without expressing on merits of the case. I feel inclined to allow this petition. He shall be released on bail subject to his furnishing bail bonds in the sum of Rs,20,000 with two sureties each in the like amount to the satisfaction of A.C./Duty Magistrate, Gujranwala.