ORDERKhalid Paul Khwqja, J.:On 9.5.1989 a case under Article. 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 was registered at Police Station Tibbi City, District Lahore against Mumtaz Haider petitioner at the instance of Muhammad Azam S.I.
2. It was alleged that the complainant who was on patrol duty along with a police party received secret information that the petitioner was selling heroin in Tibbi Gali. The complainant laid a raid on the petitioner and recovered from the pocket of his shirt a packet containing 12 grams of heroin.
The said packet was taken into possession and the petitioner was arrested who has now aplied for his bail.
3. I have heard the parties' counsel and have gone thrrough the record.
4. A sample out of the packet recovered from the petitioner was sealed into a parcel and sent to the Chemical Examiner for analysis who in his report has confirmed that it contained heroin.
According to the prosecution case the recovery of herion was effected by Muhammad Azam S.I (Complainant) in the presence of Sparas Ali and Muhammad Iqbal Foot Constables. The recovery memo was also attested by the said constables. In their statements under section 161 Cr.P.C, these witnesses have supported the prosecution case. Lcarnd counsel for the petitioner has contended that the recovery is fake and the petitioner has been falsely implicated in the present case. There is nothing on record to show that the complainant or any other police official was inimically poised against the petitioner and therefore, prima facie there is no reason to believe that the petitioner has been falsely implicated in the present case. The statements of the two attesting witnesses of the recovery memo sufficiently show that 12 grams of heroin was recovered from the possession of the petitioner. The petitioner has not brought any material on record to show that the recovery was fake or fictitious.
5. Learned counsel for the petitioner has further contended that in the present case no witness from the public was associated with the recovery proceedings and as such no sanctity could be attached to the recovery in question. He is of the view that the complainant in the present case was bound to associate witnesses from the public with the recovery proceedings under section 103 Cr.P.C. I am afraid the contention raised by the learned counsel is not tenable. This is not a case of a search of any place and therefore, the provisions of section 103 Cr.P.C are not attracted where under it. Is necessary for a police officer to call upon two or more respectable inhabitants of the locality to attend and witness the search, In the present case on receiving secret information the complainant who was on patrol duty alongwith a police party, immediately proceeded to the place where the petitioner was reported to be present to lay a raid on him. In such a situation he could not be expected to first pursuadc people from the public to accompany him and witness the recovery proceedings. This would have delayed the action and the petitioner would have slipped away. I am, therefore, of the opinion that in the present case joining of the witnesses from the public to witness the recovery roceedings was not essential and omission in this regard docs not vitiate the proceedings.
6. Since the offence charged against the petitioner falls under the prohibitory clause of section 497 Cr.P.C, and there is sufficient material on record to show that he is a drug-pusher I do not feel myself inclined to release him on bail. His bail application is dismissed.
7. Observations made in this order shall not influence mind of the trial court while disposing of the case which shall be decided purely on merits.