1. ' HAMID ALI MIRZA, J.--- This is a bail application moved on behalf of applicants/accused MuUmmad Hassan and Ghulam Moinuddin Pathan against whom and others a case under Article 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 as per Crime No,49 of 1995 Police Station Kunri, District Umer Kote has been registered.
2. ' The brief facts of the case are that Inspector Muhammad Malook Chand Police Station Khipro stated that on 2-7-1993 at about 23-30 hours D.S.P. Allah Bux Bhatti came at police station and informed that Abdul Aziz Billu, D.I.-G. Mirpurkhas range has directed him on telephone for raid at narcotic den and the said message was conveyed to him by S.S.P., Sanghar and S.S.P. Has also dispatched police force to Police Station Khipro for help and under the command of P.D.S.P., Khipro vide. Daily diary No,32 at about 01-00 hours and they proceeded from police station and reached adjacent to the house of Ashraf Arain Ex-Chairman, Town Committee, Kunri and stopped the vehicles and ordered the police personnel's to encircle the houses of Pathans adjoining the house of Ashraf Arain and awakened the person sleeping on cot outside the house in front of the door and enquired about his name, parentage and address to which he disclosed his name Ghulam Moinuddin son of Muhammad Siddik by caste Pathan originally belonging to Quetta and from his personal search of the waistcoat four pieces of Charas wrapped in plastic and from the front pocket of his shirt currency notes of different denomination amounting to Rs,1,366 and one packet of opium wrapped in plastic bag lying under the pillow of his bed were secured, so also one small weighing scale with weights were secured under his cot and on enquiry he disclosed that the narcotics belonged to Muhammad Hassan Pathan and he was his servant when Muhammad Hassan was called from the house who also disclosed his name as Muhammad Hassan and enquired about the narcotics to which he confessed that he was dealing in narcotics and from the wood go down, he produced one plastic bag of blue color lying under the wood which contained eleven small and large size packets of opium and from his personal search an amount of Rs,3,000 of different denomination were secured from his pocket and from adjoining go down two persons came and they disclosed their names to be Dilawar and Sattar resident of Kunri and from Dilawar one bag of blue color was secured which contained four packets of Chars and from his personal search an amount of Rs,1,000 of different denomination were secured and three packets of Charas and an amount of Rs,1,000 of different denomination were secured from Sattar and both the persons Dilawar and Sattar deposed to be the employees of Muhammad Hassan Pathan. The Investigating Officer arrested all the persons and prepared memo. Of arrest and recovery of narcotics and weighted narcotics when opium was found to be 57 Kgs., Charas 5 Kgs. And heroin 3-1/2 grams.
3. ' Heard Mr. Muhammad Yousuf Leghari, learned counsel for the applicants and Mr. Abdul Latif Ansari, learned Assistant Advocate-General for the State and perused the police papers.
4. ' Mr. Leghari has argued that co-accused Dilawar and Sattar were granted bail in Criminal Bail Application No, 280 of 1995 by this Court on 13-9-1995 and the case of the applicant/accused was identical therefore, applicants were entitled to bail. He has further argued that there has been violation of section 22 as search was conducted in absence of search warrants hence the recovery of alleged narcotics would be illegal. He has relied upon 1995 PCr.LJ 32, 1995 PCr.LJ 677 and 678 and PLD 1976 Lah.
5. 28.
6. ' Mr. Ansari Assistant Advocate-General has argued that mere fact that the. Accused Dilawar and Sattar were granted bail would not itself entitle the applicants to bail if applicants are found otherwise not entitled to it hence the rule of consistency would not be applicable. He has further argued from the F.I.R. And memo. Of recovery and arrest it would appear that the recovery of narcotics was made from outside the house and not from the closed place of the house therefore, section 22 of the Prohibition of Enforcement of Hadd Order, 1979 would not be attracted. Mr. Ansari has further argued that there were hundred per cent. Chance of ascension of applicants/accused who belonged to Quetta. He has placed reliance upon PLD 1991 Quetta 43, PLD 1991 Lah. 433, 1995 MLD 1813, 1995 SCMR 1783 and PLD 1995 Kar. 347 (D.B.).
7. ' We have considered the arguments of Mr. Leghari and Mr. Ansari learned State Counsel and have also gone through the case-law cited by the respective learned counsel and the annexures filed with the bail application.
8. It is correct that bail was granted to co-accused Dilawar and Sattar by this Court but it would appear that it was not brought to the notice of our learned brother Judge of this Court that the recovery of narcotics was made from outside the house and not from the closed place and the fact that the present applicants have themselves produced huge quantity of narcotics stated in the F.I.R. And memo. Of recovery when one of them is stated to be dealer in narcotics and their ascension is alleged to be hundred per cent. Therefore, their case would stand on different footing to those of co-accused to whom the bail was granted by our learned brother Judge in Chamber hence rule of consistency would not apply. Reference is made to Kanwar Khalid Younus v. The State PLD 1995 Kar. 347 (D.B.) wherein reliance was also placed on the case of Muhammad Azeem v. The State PLD 1988 .SC 84 wherein it was observed:-- "Mere fact that a person who should not have been allowed bail, was allowed bail in the same case does not justify grant of bail to a person who is otherwise not entitled to it."
9. In the circumstances the contention of Mr. Lehar that applicants' case was identical to those of co- accused to whom bail was granted therefore, as a rule of consistency present applicants would be entitled to bail has no merit and substance, so also the contention that the search warrants were not obtained hence the recovery made was not legal has no merits as the recovery was alleged to have been made outside the house and not from the closed place hence provisions of section 22 would not be attracted in this case. The applicants/accused as per material on record were arrested at the spot along with the narcotics as stated above as per memo. Of arrest and recovery and the alleged offences being punishable with imprisonment for life and whipping not exceeding 30 stripes and there being reasonable grounds to believe that the applicants/accused were guilty of the alleged offences, keeping in view weighty apprehension of ascension, the applicant/accused would not be entitled to bail at present. Applicants could repeat their application after material witnesses are examined. We, therefore, find no merits in the bail application which is hereby rejected.