' The brief facts of the bail petition are that an F.I.R. No,1/1989, dated 20-1-1989 was registered at P.S. Baghdad-ul-Jadeed, District Bahawalpur, under Article 3/4 Offence of Prohibition (Enforcement of Hadd) Order, 1979 against the petitioner Muhammad Aslam.
2. According to the F.I.R. On receipt of a secret information that the petitioner was selling Heroin and Charas at his house, a fictitious customer was sent with a marked note of fifty rupees who purchased one gram of heroin from the petitioner which was taken into custody and sealed into a parcel in the presence of witnesses. Thereafter the house of the petitioner was raided after obtaining the search warrant. The petitioner was standing at the door of his house and on seeing the raiding party, he ran into his house, and that the raiding party pursued him into the house and took him into custody. On his personal search 11 Purris of heroin and a marked note of fifty rupees used by the fictitious customer was recovered and on the search of the petitioner's living room, 350 grams of Charas was recovered from under the cot along with a weighing scale made of empty tins of polish. The Heroin and the Charas thus recovered, was sealed into parcels and 11 grams of Heroin and 10 grams of Charas out of recovered 11 grams of Heroin and 350 grams of Charas respectively was sent to the Chemical Examiner for his report.
3. Learned counsel for the petitioner contends for bail on the following grounds:-
(i) That the decoy/fictitious customer was a police H.C. And not from the public, therefore, the story of the purchase is fictitious.
(ii) That as the house search had taken place, therefore, in accordance with the provisions of section 103 Cr. P C, two or more independent witnesses from the locality should have been associated to witness the search, but in the present case this requirement of the law was not fulfilled, whereas in the present case the recovery witnesses comprise of one Si. Of Police and the other being Bashir Ahmad, a police stock witness who had accompanied the police raiding party right from the beginning. And it was further contended that the said witness of recovery, Bashir Ahmad is a witness in Case Nos.315/314 of 1988, dated 30-12-1988, P.S. Civil Line, Bahawalpur to prove his contention that he is a stock witness of the police.
(iii) That even after a lapse of three months there is no report of the Chemical Examiner on the case file.
(iv) That the petitioner is in the judicial lock-up for the last three months and is no longer required by the police and that he is not a previous convict.
4. To support his contention the learned counsel for the petitioner relied upon PLD 1986 Lah. 574 (Muhammad Bashir v. State) wherein it was held that as two or more respectable inhabitants of the locality were not associated and had not witnessed the search of the house of the accused, therefore, it was violation of the provision of section 103 of Cr.P.C. And the accused charged with the possession of 1015 grams of Heroin was considered to be entitled to bail.
' The second authority relied upon by the learned counsel for the petitioner was 1985 P Cr. L J 2779 (Babar Islam v. The State), wherein the accused allegedly found in possession of 850 grams of heroin was admitted to bail on the ground that he was no more required by the police for investigation and was not a previous convict and that the prosecution intended to examine the police officials Only as prosecution witnesses.
5. The learned counsel for the State opposes the grant of bail to the petitioner on the following grounds:- ' That the provisions of section 103 Cr. P C stand fulfilled in the present case as there are 9 witnesses of locality other than Bashir Ahmad, who had associated with the raiding party in search and recovery as stated in the F.I.R. In this respect the learned counsel for the State referred to a case Cr.
Misc. No, 270-B/1989/BWP Ghulam Hussain vs. State wherein the accused charged with Articles 3/4 Prohibition (Enforcement of Hadd) Order, 1979 had been refused bail as the inhabitants of the locality had been associated with the search and recovery even though they had not witnessed the recovery memo. However, on a question, the learned counsel for the State confirmed that, in the case referred to, a note had been duly taken down in writing to the effect that the inhabitants of the locality who had associated with the search and recovery had refused to sign the recovery memo. It was further confirmed that in the present case there was no attestation by the local inhabitants of the recovery memo. And nor there was a written note to the effect that they had refused to sign the recovery memo.
' The second authority relied upon by the learned counsel for the State to support his contention was PLD 1987 Lahore 492, wherein it has been held that the evidence of the police officials cannot be rejected when it is supported by unimpeachable circumstances. However, it is not relevant at the bail stage.
6. In view of the facts that the local respectable had not witnessed the recovery memo. And as admitted by the learned State Counsel there is no note recorded in writing that the persons associated with the search and recovery had refused to do so, therefore, the provisions of section 103 of the Cr.P.C. Have not been complied with in the present case, and as confirmed by the learned counsel A for the State the petitioner has been in judicial lock-up for about three months and is no more required by the police for investigation, and that he is not a previous convict, and that the report of the Chemical Examiner has not been received even after a lapse of about three months, and, therefore, placing reliance on the authorities cited by the learned counsel for the petitioner, the accused is admitted to bail in the sum of Rs, 50,000 with two sureties in the like amount to the satisfaction of A.C/Duty Magistrate, Bahawalpur.