This is an application for bail on behalf of Muhammad Yousaf, petitioner.
2. Briefly stated facts of the prosecution case are that in pursuance of a spy information that Muhammad Yousaf petitioner was engaged in surreptitious sale of heroin in wrappings in Kumharanwala Street. Muhammad Akram Khan, S.H.O. Police Station City, D.I. Khan rushed to the place of occurrence alongwith the police party, overpowered the petitioner and search of his person led to the recovery of 85 grams of contraband heroin. It was secured through the usual recovery memo.
The petitioner was arrested and a case was registered against him under Article 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter called as the Order); vide F.I.R. No.209 dated 21-5- 1990 of Police Station City, D.I. Khan.
3. Mr. Inamullah Khan, Advocate, appearing on behalf of the petitioner, contends: firstly, that the search of the person of the petitioner was in violation. Of the mandatory provisions of section 103, Cr.P.C. And placed reliance on Ahad Sher v. State PLD 1980 Pesh. 11, secondly, that the contraband powder was duly wrapped in different wrappings but only one wrapping was sent for chemical analysis which did not connect the petitioner with the crime and, lastly, that Ghulam Abbas Shah, one of the P.Ws., who had marginally witnessed the recovery memo had `close contacts with the police' and was `not the resident of the Mohallah' where the search had been made.
4. On the contrary, Mr. Muhammad Salim Khan Gandapur, the learned counsel appearing for the State, has opposed the plea of bail advanced on behalf of the petitioner and contended that no material against Ghulam Abbas Shah in this case had been brought on record to substantiate the allegation that he had close contacts with the police. It was also submitted that merely because Ghulam Abbas Shah P.W. Was not the resident of the place where the petitioner was searched would not discredit him to witness the recovery memo., particularly when there is nothing on the record to show any mala fides either on the part of the police or that of Ghulam Abbas Shah. He also repelled the contention of the learned counsel for the petitioner that the search of the person of the petitioner was in violation of the provision of section 103, Cr.P.C. And referred to Shah Nawaz v.
State PLD 1986 FSC 242 and Muhammad Shah v. The State PLD 1984 SC 278 wherein it has been observed that a bare reading of section 103 ibid would make it crystal clear that it refers to search of places and not of persons.
5. The first contention raised on behalf of the petitioner that the provision of subsection (1) of section 103 ibid is equally applicable to the search of person is, ex facie, not tenable. This proposition stands settled in the two authoritative pronouncements made in the cases of Shah Nawaz and Shah Muhammad cited at the bar by the learned counsel appearing on behalf of the State.
6. The second contention of the petitioner's counsel that only one wrapping was sent for chemical analysis is belied by the narration in the F.I.R. And the recovery memo evidencing the recovery of contraband heroin from the possession of the petitioner. It has been stated that out of 85 grams, one gram heroin has separated and sealed into a parcel for chemical analysis, while the remaining heroin had been separately sealed. This contention, prima facie, is, therefore, not tenable at this juncture. In any case, it would be for the trial Court to examine this aspect of the case.
7. I also do not find any substance in the contention of the petitioner's counsel that Ghulam Abbas Shah P.W. Had, in any way, `close contacts with the police', because, there is nothing on the record to support this wild allegation. Merely because Ghulam Abbas Shah is not the resident of the place where the occurrence had taken place would not be of much significance at this stage. 8 The report of the Forensic Science Laboratory placed on the file shows that the substance recovered from the possession of the petitioner was heroin.
8. From the tentative assessm ent of the material brought on the file so far, I am of the view that the petitioner's case is not 6t for bail. Prima facie, the offence with which the petitioner has been charged falls within the prohibitory clause of subsection (1) of section 497, Cr.P.C.
9. In consequence, this petition has no merit and stands rejected. However, the trial Court is directed to conclude trial of this case within three months after receipt of record from this Court.
The office is directed to send record of the case to the trial Court.
N.H.Q./1353/P