' Zulfiqar Ali Shah petitioner being accused in a case F.I.R. No,231/94 under section 3/4 Prohibition (Enforcement of Hadd) Order 1979 with Police Station Satellite Town, Sargodha has approached this Court for the grant of bail after refusal of the same by the learned Additional Sessions Judge, Sargodha.
2. The allegations against the petitioner are that in a raid conducted by police officials, 14 grams heroin was recovered from the possession of the petitioner.
3. Learned counsel for the petitioner contends that the petitioner is in jail for more than 8 months; the challan has not been submitted so far; the mandatory provisions of section 103, Cr.P.C. Have not been complied with while effecting recovery and lastly the petitioner is not previous convict.
4. Conversely, learned counsel for the State has opposed the grant of bail and informs the Court that the challan will be submitted soon.
5. I have considered the arguments advanced by the learned counsel for the parties at length and have perused the record with their assistance.
6. The contention of the learned counsel for the petitioner that as two or more respectable inhabitants of the locality have not been associated to the alleged recovery, such recovery is in violation of the provisions of section 103, Cr.P.C. Is not without force; as in case of Muhammad Khan v. Dost Muhammad and 17 others PLD 1975 SC 607; Their Lordships of Supreme Court observed that the Courts would ordinarily insist on strict compliance with such requirement and view its non- compliance with suspicion unless an explanation is forth coming for failure to secure presence of respectable witnesses; the same view was held in case of Bashir alias Doha v. The State PLD 1988 Lah, 34 by observing that non-association of respectables of locality is violative of provisions of section 103, Cr.P.C. In case Muhammad Shafi v. The State PLD 1987 FSC 16 while elaborating section 103, Cr.P.C. Honourable Judges observed that the provisions of section 103, Cr.P.C. Is designed to safeguard possible plantation of property and consequent false implication of an accused person.
The purpose of section 103, Cr.P.C. Is to ensure that the testimony given in Court in regard to the result of a search should not depend upon the Police Officer alone but also upon the evidence of independent persons and all possibility of conviction in the case of search be minimized by the availability of independent persons.
7. True, it does not mean that Police Officer's evidence is not reliable and confidence inspiring. In the absence of enmity, the deposition of a Police Officer is good evidence as that of any other witness and can be relied upon but in case in hand, the police had advance information and the police party had started with the definite purpose of arresting the petitioner, it was incumbent upon the raiding party to associate two respectable persons of the locality to witness the search and recovery and failure to follow the mandatory provisions of section 103, Cr.P.C. In spite of the advance information and availability of time vitiates the search and recovery and makes it doubtful. The complainant and author of the F.I.R. Is not only the head of raiding party but is himself, the Investigating Officer, certainly his investigation is biased; rather is a mockery. I find that the petitioner was arrested on 5-7-1994 and is detained since then in the judicial lock-up and is no more required for investigation. The challan has not been submitted so far. The petitioner is a poor labourer and is not previous convict; without making any expression of opinion, lest it be prejudice the case, I, therefore, allow bail to the petitioner subject to his furnishing bail bond in the sum of Rs,25,000 with one surety in the like amount to the satisfaction of A.C./Duty Magistrate, Sargodha.