MUHAMMAD NASEEM, J. - Sajid Hussain alias Pappu son of Muhammad Siddique alias Saddi was under arrest with the Police, Police Station Kassowal in case FIR No. 110/94 under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, Crime Case No. 111/94 under Articles 3/4 of the Prohibition on (Enforcement of Hadd) Order, 1979 and under section 14 of the Dangerous Drugs Act, 1930 and in case FIR No. 112/94 under section 13 of the Arms Ordinance, 1965 all registered at Police Station Kassowal, District Sahiwal. During the interrogation he expressed that his father Muhammad Siddique alias Saddi carried the business of sale of heroin and that he (Sajid Hussain alias Pappu accused of the aforesaid cases) could get recovered the opium and heroin from his house situated in Chak No. 39/14-L, A raiding party was constituted which was practically headed by Muzhar Abbas SI/SHO. Police Station Kassowal. He in the company of his subordinates alongwith the aforesaid accused Sajid Hussain alias Pappu went to Chak No. 39/14-L in the official conveyance. From the house of the said accused one person emerged out and started running.
Sajid Hussain alias Pappu accused under custody told the police party that the person who was running was his father Muhammad Siddique alias Saddi. Thereafter Muhammad Siddique alias Saddi is said to have thrown one shopping bag of black colour and himself made good his escape.
In that shopping bag 1000 grams of heroin were wrapped which were taken into possession vide memo, attested by Farman Ali AS1 and Muhammad Iqbal AS1. One gram of heroin was sealed in one parcel and the remaining heroin was sealed in an other parcel. Mazhar Abbas SI/SHO, Police Station Kassowal sent the complaint and FIR No. 113 dated 18.4.1994 was registered at Police Station Kassowal under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 and under section 14 of the Dangerous Drugs Act, 1930. Muhammad Siddique alias Saddi petitioner was arrested on 18.4.1994 whose bail plea has been rejected by the lower Court and he has filed this petition before this Court to try his luck to be admitted to bail.
2. I have, heard the learned counsel for the petitioner as well as learned State counsel and gone through the record before me. At the very out set I would express that the addition of section 14 of the Dangerous Drugs Act, 1930 in the FIR is simply an over doing on the part of Mazhar Abbas SI/SHO, Police Station Kassowal. The legal position is that the Dangerous Drugs Act, 1930 was not repealed by the Prohibition (Enforcement of Hadd) Order, 1979. However, Article 29 of this Order of 1979 made it clear that it will have effect notwithstanding anything contained in any other law for the time being in force. In other words the Prohibition (Enforcement of Hadd) Order, 1979 which was enacted to modify the existing law relating to prohibition of intoxicants so as to bring it in confirmity with the Injunctions of Islam as set out in the Holy Quran and Sunnah has an over riding effect.
Further for one alleged offence an accused cannot be convicted under two penal laws of two different Acts/Ordinances. I, therefore, hold that the inclusion of the penal section 14 of the Dangerous Drugs Act, 1930 in the FIR can be and has to be ignored and I pass an order accordingly.
3. After making an analysis of the arguments addressed in the matter I am inclined to admit Muhammad Siddique alias Saddi petitioner- accused to bail for my following reasons:-
(i) Before leaving for the house of Muhammad Siddique alias Saddi accused admittedly no search warrant as contemplated under Article 22 of the Prohibition (Enforcement of Hadd) Order, 1979 was obtained by the SHO. Thus the very foundation of the case is legally defective.
(ii) The police party could not identify Muhammad Siddique alias Saddi accused during the day time as Sajid Hussain alias Pappu is said to have named his father at the time he made the Pointedness. It follows that the petitioner was not a notorious person in the list of the police for carrying on the business of heroin.
(iii) The recovery of heroin has not been effected from the physical possession of Muhammad Siddique alias Saddi petitioner-accused as the relevant packet is said to have been thrown away which was picked by the police party from the ground.
(iv) The recovery memo is attested by Farman Ali AS1 and Muhammad Iqbal AS1. The may be competent witnesses. However, the weight can be attached to this part of the evidence after the conclusion of the trial as the alleged recovery is violative of mandatory provisions of section 103 Cr.P.C. There is nothing cm record to make out that any effort was made by the police to join two respectables of the area in the recovery proceedings who had refused in the matter.
4. I, therefore, accept this application and admit Muhammad Siddique alias Saddi petitioner- accused to bail in the sum of Rs. 50,000/- (rupees fifty thousand) with one surety in the like amount to the satisfaction of the Addl. Sessions Judge, Chichawatni/A.C. Chichawatni, District Sahiwal with the direction to appear before the learned trial Court on every date of hearing failing which this order shall be deemed to have been recalled.