S.M. ZUBAIR, J. -Mst. Khairan Bibi wife of Inayat Ullah, who is involved in a case under sections 3/4 of P. O. IV of 1979, arising out F.I.R. No.37, dated 8-2- 1990, registered at Police Station Nowsheran Virkan, District Gujranwala, seeks to be admitted to bail.
2. According to the F.I.R., it is alleged that the raiding party comprising Excise and Police officials was present in the house of the petitioner. The petitioner was sitting on a cot in the courtyard. She was asked to get up. It is alleged that the petitioner was holding a shopper bag in her right hand containing heroin weighing one KG which she produced before the raiding party.
3. It is contended by the learned counsel that the petitioner is a lady, bence she is entitled to bail even in a case falling within the prohibitory clause.
It is next contended that the provisions of section 103 Cr. P. C. Were not complied with as the recovery was effected from the house, but no public witness was associated with the recovery.
In the end, the learned counsel submitted that in view of section, 16 of P.O. IV of 1979, the offence falling under sections 3 and 4 ibid were not committed in a public place, hence the recovery and investigation by the police is void ab initio. Reliance has been placed on Hayat vs. The State (1985 P.
Cr. L J. 1353). On the basis of the aforesaid case-law, learned counsel submitted that the case against the petitioner is of further inquiry, because illegal search and unwarranted investigation cannot give birth to valid recovery.
4. On the other hand, learned counsel for the State submitted that huge quantity of heroin was recovered from the possession of the petitioner and mere non-observance of provisions of section 103 Cr. P.C., would not be fatal to the prosecution case in the absence of any mala fide against the police. With respect to the contention of the learned counsel for the petitioner that the case is not cognizable, learned counsel submitted that it would be decided at the trial whether the case is cognizable or not.
5. After hearing the learned counsel for the parties and perusing the case law, referred to above, I find that there are legal infirmities in the case and the recovery of heroin at the instance of the petitioner is contrary to law as the provisions of section 103 Cr.P.C, were not complied with.
6. It is a settled principle of law that if the law provides that an at should be done in a particular manner then it should be done in that manner or it should not be done at all. Applying the said principle I find that the recovery was not effected in accordance with the provisions of section 103 Cr. P. C. Over and above, in view of section I6 of the Order, the police can investigate the case if the narcotics is found in the possession of an accused at a public place, but in view of the definition given in the Order itself, the house is not a public place, hence prima facie, the police could not enter into investigation in this case and coupled with the fact that the petitioner is lady, she is entitled to bail.
7. In view of the above discussion, case for the grant of bail is made out. The petitioner is directed to be released on bail subject to her furnishing bail bond in the sum of Rs. 1,00,000/- (rupees one lac only) with one surety in the like amount to the satisfaction of the A.C./Duty Magistrate, Gujranwala.