' The petitioner who is involved in a case under sections 353/186, 224/225 P.P.C. And Article 3/4 of P.O.IV of 1979, arising out of F.I.R. No, 221/90, dated 5-5-1990, registered at Police Station Nawankot, Lahore, seeks to be admitted to bail.
2. On a secret information that the petitioner was selling heroin openly, a raiding party was organized. Munawar Hussain H.C. Was deputed as a decoy witness to purchase the heroin from the petitioner. Munawar Hussain H.C. Purchased one packet of heroin weighing one gram from the petitioner. Thereafter the raiding party apprehended the petitioner and on his personal search 55 grams of heroin was recovered from the pocket of his shirt.
3. Learned counsel for the petitioner vehemently contends that there is no concept of decoy witness in Islam; rather this practice has been deprecated by the Federal Shariat Court. She has placed reliance on Muhammad Iqbal v. The State 1989 P Cr. L J 1334, particularly on the following observations of the learned Judges:-- "We can hardly lay hand on a single case in Islamic history where punishment was awarded to the offender on the testimony of decoy witness or fake purchaser. On the contrary Islamic jurisprudence has introduced a revolutionary concept of {{URDU TEXT}} " to ensure a clean trial. A decoy witness or fake purchaser is a self-condemned liar. How his version can inspire confidence when tested on the touchstone of {{URDU TEXT}} ' Learned counsel further contended that no public witness was associated by the police while making recovery of heroin from the petitioner and in view of the admitted background of enmity between the petitioner and the police, as is apparent from Writ Petition No, 4204 of 1989, no reliance can be placed on this dubious recovery. In support of this contention, learned counsel cited 1990 P Cr.L J 26, 1990 P Cr. L J 1175, 1989 ALD 141(2) and 1990 M LD 193.
' Learned counsel also contended that in the present case, the complainant himself investigated this case and as such the case of the petitioner has been prejudiced, because he has not conducted the investigation impartially and independently and has placed reliance on 1989 P Cr. L J 601.
4. Learned counsel for the State has opposed this application on the same reasons which prevailed with the trial Court i.e, the petitioner remained P.O. Hence he is not entitled to bail. He submitted that the police had no animus against the petitioner to involve him falsely in this case and as the offence committed by the petitioner falls within the prohibitory clause, therefore, the petitioner is not entitled to bail. He further submitted that police officials are competent witnesses like public witnesses and that the provisions of section 103 Cr. P.C. Apply to house search and not to personal search. Reliance has been placed on PLD 1986 FSC 242 and 1990 P Cr. L J (FSC) 590.
5. After considering the respective submissions of the learned counsel for the parties and perusing the record, I find substantial force in the submission of the learned counsel for the petitioner that in view of the judgment of the Federal Shariat Court in Muhammad Iqbal's case sending of decoy witness in order to trap the accused is unethical and against the spirit of Islamic justice. The prosecution is not entitled to send decoy witness to trap the accused in Shariat cases, hence the procedure adopted by the Police Officer in apprehending the petitioner is open to legal objection.
The complainant should not be the investigating officer of the case, because the law requires that the investigation must be conducted by an independent person, who has no personal interest in case. The duty of the Investigating Officer is to bring all the relevant facts before the Court, whether those facts favour the prosecution case or not, to enable the Court to come to a just decision. In the presence of the proved enmity between the petitioner and the local police, as is apparent from, the proceedings of W.P. No, 4204/89, there was no legal justification with the police not to associate any public witness while effecting the recovery of the heroin from the petitioner, who were readily available as recovery was made in the bazar.
In view of the above discussion, I find that the recovery effected from the petitioner is not above board, and the case against the petitioner is one of further inquiry. The petitioner is accordingly admitted to bail in the sum of Rs. 50,000 (fifty thousand only) with two sureties each in the like amount to the satisfaction of the A.C. Lahore.
6. Before parting with this order, keeping in view the legal position discussed above, I direct the S.S.P. Lahore that he should issue departmental instructions to all the police officers for their guidance that (a) in future no police officer should get assistance of a decoy witness to trap the drug seller, as the concept of decoy witness or a fake purchaser is against the spirit of Islamic justice; (b) that the recovery of the narcotic should be effected in the presence of public witnesses to obliterate the chances of false implication; and (c) the complainant police officer should not be the I.O. Of the case as it leads to biased investigation and is contrary to the concept of justice.
' A copy of this order should be sent to the S.S.P. Lahore, for information and compliance.