' The brief facts of the present bail petition are that an F.I.R. No,188/89 dated 8-6-1989 was registered under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 at Police Station Lower Mall, Lahore against the petitioner.
2. According to the F.I.R., the complainant, A.S.1., Moazzam Naqvi, on receipt of a secret information that Jamshed Ali petitioner was selling heroin near Takia Sardar Shah adjacent to Data Darbar, sent a decoy customer, Muhammad Ismaeel, Police Constable to the petitioner. It is further stated therein that when the decoy customer was about to take the Purri of heroin from the petitioner, the complainant along with other police constables caught hold of the petitioner and recovered a signed note of Rs,50 from his right hand and one Purri of heroin of one gram from his left hand, and that thereafter on the personal search of the petitioner; 150 grams of heroin was recovered from his side pocket, and that one gram of heroin was taken out as a sample and made into a separate parcel. The learned counsel for the petitioner contends for bail on the following grounds:--
(i) That the petitioner is innocent and a false case has been registered against him, and that even if it is accepted that heroin was recovered from him, but as only one gram of heroin has been taken out as a sample, therefore,z' even a positive report in respect thereof will not bring the case of the petitioner within the prohibitory clause.
(ii) That even the bare reading of the F.I.R. Makes it clear that the petitioner had not sold any heroin to the decoy customer and as such no offence of selling the heroin is made out against the petitioner.
(iii) That the so-called personal search of the petitioner by which it is alleged that 150 grams of heroin was recovered from his side pocket is against the provision of law as laid down under section 103 of Cr.P.C. It was further argued that the said search has not been witnessed by any respectable of the locality or by any independent witnesses.
(iv) That the mala fides of the prosecution are obvious as, according to the prosecution itself, the petitioner was arrested and sent to the judicial lock-up on the very same day, giving rise to doubts in respect of the investigation having been conducted in a bona fide manner, and it was further argued, that any doubt so arising should go in favour of the petitioner even at the bail stage.
(v) That according to the Chemical Examiner's report, dated 19-6-1989 in respect of two parcels of one gram each of the heroin recovered, the said parcels were dispatched to the Chemical Examiner on 18-6-1989, therefore, it was argued, that the delay of 10 days in sending the two samples of two grams each to the Chemical Examiner raises grave doubts about the alleged heroin having been recovered on 8-6-1989, the day of occurrence, from the petitioner.
3. The learned counsel for the State opposed the petition for bail but conceded that only two grams of heroin were sent to the Chemical Examiner, for his report and that it was done on 18-6-1989, ten days after the alleged recovery, and he further conceded that the personal search and recovery of heroin was not witnessed by the independent witnesses and that the petitioner was sent to the judicial lock-up on the very day of his arrest.
4. In view of what has been conceded by the learned counsel for the State, that only two grams of heroin were sent to the Chemical Examiner, for his report and that even a positive report in respect thereof does not bring the case of the petitioner within the prohibitory clause, and that the search and recovery of the heroin from the petitioner was not witnessed by notables of the locality or by independent witnesses, therefore, the case of the petitioner is one of further inquiry, and therefore, the petitioner is hereby admitted to bail in the sum of Rs,20,000 with one surety in the like amount to the satisfaction of the trial Court.