The petitioner stands accused of offences punishable under Articles 3 and 4 of the Prohibition Order of 1979 read with section 8/14 of Dangerous Drugs Act vide F.I.R. No.67, dated 7-2-1991 of Police Station `B' Division, Kasur.
2. It was on a secret information received by the Inspector/S.H.O. That Muhammad Ali, F.C. No.436 was sent as a fake customer to whom Boota petitioner sold 1 gram of Heroin.
3. On being arrested, another 15 grams of heroin was allegedly recovered from the person of Boota petitioner besides recovery of Rs.680 from, his pocket including the tainted currency note of Rs.50.
4. The learned counsel submits that there are no public witnesses available to the prosecution to support its case; that only 1 gram of heroin was sent to the Chemical Examiner which makes the case of the petitioner bailable; that the petitioner is in custody for the last about five months and the trial against him has not commenced and finally that in the circumstances, the petitioner deserved to be admitted to bail.
5. It is not just .The possession but even the sale of heroin of which the petitioner stands accused. In the matter of sale, the quantity of heroin sold is of no consequence and in the circumstances, the case of the petitioner does not fall within the category of bailable offences.
6. The police officials who have allegedly witnessed the sale and the recovery of the heroin in question are competent witnesses under the law and in the circumstances, it cannot be said that absence of public witnesses, in support of the prosecution case, is fatal to the same.
7. The release of the accused persons on bail on ground of delay is now statutorily governed by the third proviso to section 497(2), Cr.P.C. And it is only the delay mentioned in the said proviso which can entitle an accused person to his release on bail. Admittedly the delay in the present case has not ripened into such a delay.
8. The learned counsel finally, submits that the case of the petitioner, in any case, does not fall within the prohibitory clause.
9. The fact that the case of an accused person does not fall within the prohibitory clause, does not mean that he-is entitled to be released on bail, as of right. Even if the case does not fall' within the prohibition contained in section 497(1), Cr.P.C., the matter still remains within the discretion of the Court to admit or hot to admit an accused person to bail.
10. A person accused of sale of heroin is certainly not the kind of person who can evoke sympathy from any reasonable person.
11. In the circumstances, I do not feel perusaded to exercise my discretion in favour of such an accused person even if his case does not fall within prohibitory clause.
12. In view of what has been noticed and discussed above, this petition is dismissed.