1. ' This is a reference made by Sessions Judge, Mirpurkhas, requesting for setting aside an order of bail passed by In charge Sessions Judge, Mirpurkhas on 7-5-1995, granting bail to accused Kirshan son of Ranjeet Menghwar in a case under section 3/4, Prohibition (Enforcement of Hadd) Order, 1979.
2. ' The facts of the case in nutshell are to the effect that Ataur Rehman, Sub-Inspector Police, C.I.A.
3. Centre, Mirpurkhas, on spy information proceeded to a place in-between village Modho Mahli and Murad Unnar in the garden of Ramji Kohli in a half constructed Katcha hut. When the police party reached the said place at about 6-15 p.m. They found accused standing in front of the gate of the said half constructed Katcha hut, with a polythene bag in his hand. He was apprehended and on search that polythene bag was found to contain pieces of Charas and a bag containing heroin powder. On weighing the material, it was found that the heroin powder weighed 980 grams while the Charas weighed 5006 grams. The police took out one gram of heroin powder and six grams of Charas as sample and sent the same to Chemical Examiner and arrested the accused and produced the challah against him after completing the investigation. The incident had taken place on 22-3-1995. The accused was granted bail on 7-5-1995 by the In charge Sessions Judge and on 31-8-1995 Mr. Azizullah M. Memon, Sessions Judge, Mirpurkhas, made the present reference. In support of the reference Mr. Akmal Wasim, the learned A.A.-G. Stated that since the quantity of the contraband recovered from the possession of the accused was huge and the reasoning of the learned In charge Sessions Judge while granting the bail was not sound, reference should be accepted and the bail be cancelled. L, anted counsel appearing for the accused, however, argued that the accused was granted bail about 9 months back during which period he has been regularly attending the Court and has not misused the liberty, the bail should not be cancelled. As regards the reasoning, on which the bail was granted, it appears that the In charge Sessions Judge considered the place wherefrom the accused was apprehended to be a private place and, therefore, not being a public place, the police ought to have obtained the search warrant before apprehending the accused. The place of the incident as described in the F.I.R. As well as the recovery memo. Is shown as half constructed Katcha but inside garden of Ramji Kohli. Learned Sessions Judge in his reference has contended that the lands comprising of gardens would not be termed as private places until and unless the same are proved through necessary evidence. Be that as it may, without entering into any controversy as to where the accused was apprehended was public place or not, I feel that grounds for cancellation of bail are different from those on which the bails are generally granted. The contention that the reference does not amount to an application under section 497(5), Cr.P.C. For cancellation of bail is yet another point raised by the learned counsel for the accused. Since the accused had remained on bail for a period for about 9 months during which there is no allegation that he has misused the liberty and the reference was also made after a period of about 3 months of the order of grant of bail, I do not consider it proper at this stage that the liberty, which was allowed to the applicant by the In charge Sessions Judge, should be snatched at this stage, even if the applicant was not entitled at the initial stage for grant of bail in this case. Apart from that, this appears to be a very short case as hardly 2 or 3 witnesses are to be examined by the prosecution. , therefore, decline to accept the reference made by the Sessions Judge and do not order the cancellation of bail granted to the accused. However, feel that a direction to the trial Court to decide this case within a period of two months will be in the interest of justice. Any observation made in this order should not influence the mind of the trial Court.