KHAWAJA MUHAMMAD SAEED, J.- The appellant is involved in a case registered against him with Police Station Muzaffarabad vide F.I.R, dated January 13, 1994. He moved an application before the District Court of Criminal Jurisdiction Muzaffarabad on January 19,1994 seeking his release on bail but his prayer was declined vide impugned order dated January 24, 1994. Hencce the present appeal.
2. The allegation against the appellant is that he was found in possession of thirteen grams of Heroin at the the of his arrest.
3. I have heard the learned Counsel for the parties and have also perused the record of the case.
4. Raja Sher Muhammad Khan, the learned Counsel for the accused- appellant argued that there are no reasonable grounds to believe that the appellant has committed the offence with which he has been charged in the present case. The sample of the alleged heroin was sent to the chmical examiner for his opinion but the report of the chemical examinar has not been received till now.
The alleged recovery was made at about 8-00 P.M. Near Ghari-Pan when the police party was on routine. The place from where the alleged recovery was made, is a busy area where different persons of different tribes are running their businesses and restaurants but no person from the public was associated while making recovery of the alleged heroin from the possession of the accused- appellant. Even in recovery memo it has not been mentioned that Heroin from the possession of the accused-appellant was weighed before mentioning its weight in the recovery memo. With these submissions he argued that the case of the prosecution is based on false allegations.
3. While controverting the arguments of the learned counsel for the appellant, the leamed Assistant Advocate General argued that police officials who have recovered the Heroin from the possession of the accused-appellant have signed the recovery memo. He further argued that the public do not come forward now-a-days as witnesses in such like cases. In these circumstances, when no enmity or malice has been attributed to police officials then in such like cases the police officials are trustworthy witnesses. He supported the decision under appeal.
4. I have considered the respective submissions of the leamed Counsel for the parties and have gone through the record of the case.
5. In this case, admittedly challan has not been filed against the accused- appellant as yet on the ground that opinion of the chemical examiner has been received so far. The appellant has been arrested from a commercial area. The police has not shown as to why it did not associate any person from the public at the the when search was effected from the accused-appellant. The police officials, no doubt are trustworthy witnesses but it cannot be ruled out from mind that when private persons are available at the the when recovery is made, or search is conducted, then such persons must be associated as witnesses. Till this the, in the absence of the report of the chemical examiner, it cannot be said with certainty that in fact the alleged Heroin was recovered from the possession of the accused-appellant.
5. In view of the above facts,I set aside the order under appeal and admit the accused-appellant to bail in the sum of Rs. 50,000/- with one surety in the same amount to the satisfaction of any Magistrate 1st Class Muzaffarabad. On furnishing the bail and surety bonds the accused-appellant shall be released from the custody forthwith.