The petitioner was proceeded against vide F.I.R. No.20 of 1995 registered under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order 4 of 1979 at Police Station City, Bahawalnagar.
2. The prosecution story briefly stated is that on a source report that the petitioner was indulging in the sale of opium, a decoy customer was sent with a note of Rs.100. At the fateful time, the decoy customer signaled the police party who were hiding nearby. The police party apprehended the petitioner at the spot who disclosed his name as Muhammad A.I and he was carrying a bundle in his hand. There was opium in it which weighed 1300 grams. 10(ten) grams of opium out of the total opium recovered was sent to the Chemical Examiner and the report received from there is positive.
3. The learned counsel for the petitioner has prayed for bail of the petitioner on the following grounds:--
(i) That the whole procedure adopted the police to apprehend the petitioner and to effect the recovery of opium is unethical, un-Islamic and has been disapproved by the Federal Shariat Court.
In this connection he relied on 1989 PCr.LJ 1334 (Muhammad Iqbal alias Bala v. The State);
(ii) That no public witness was associated with the recovery and hence the proceedings cannot inspire any confidence; and
(iii) That the offence alleged against the petitioner does not fall within the prohibitory clause of section 497 of the Cr.P.C. It is only the raw---opium which is punishable with life imprisonment and not opium. Reliance was placed on 1994 SCMR 434 (Azmat Khan v. State).
4. The learned counsel for the State, on the other hand, has opposed the prayer of bail and has submitted that the petitioner is a professional drug paddler and there are following cases registered against him at various police stations:--
(i) F.I.R. No.115 dated 30-4-1989 under Articles 3 and 4, Prohibition (Enforcement of Hadd) Order, 1979 Police Station Baseerpur;
(ii) F.I.R. No.277 dated 22-8-1990 under Articles 3 and 4, Prohibition (Enforcement of Hadd) Order, 1979, Police Station Baseerpur;
(iii) F.I.R. No.110 dated 20-8-1991 under Article 3 and 4, Prohibition (Enforcement of Hadd) Order, 1979, Police Station Saddar Okara;
(iv) F.I.R. No.105 dated 20-3-1992 under section 452, P.P.C. P.S. Baseerpur; and
(v) F.I.R. No.313 dated 23-8-1992 under Articles 3/4 Prohibition (Enforcement of Hadd) Order, 1979, P.S. Baseerpur.
It was further submitted that the offences alleged against the petitioner falls within the prohibitory clause of section 497, Cr.P.C. And the petitioner is not entitled to bail.
5. I have heard the learned counsel for the parties and have also gone through the precedent case-law.
6. In 1994 SCMR 434 (Azmat Khan v. The State), learned counsel for the accused in that case referred to PLD 1992 FSC 497 to contend that it is only the possession of raw-opium which is punishable with imprisonment for life and the amendment made vide Ordinance XXIV of 1993 dated 26-9-1993 whereby the word 'RAW' was omitted, it was argued, could not be retrospective in operation to bring the possession of opium within the prohibitory clause of section 497, Cr.P.C.
Delay of more than ten months in the trial was also pleaded as a ground. The Hon'ble Supreme Court found force in this argument and the bail was allowed.
"In the presence of the proved enmity between the petitioner and the local police, as is apparent from the proceedings of W.P. No.4204 of 1989, there was no legal justification with the police not to associate any public witness while affecting the recovery of the heroin from the petitioner who were readily available as the recovery was made in the bazar."
7. The facts in the instant case, however, are distinguishable. The law as it stands today, possession of opium if the quantity exceeds one kilogram in case of opium is punishable with imprisonment for life. The word 'raw' was omitted in the second proviso to Article 4 of Prohibition (Enforcement of Hadd) Order, 1979 by Ordinance XXIV of 1993 and the instant case was registered on 29-1-1995.
Thus the argument which is pressed in Azmat's case (1994 SCMR 434) is not applicable to the facts of this case.
8. Although it is always better to associate members of the public while affecting recovery in criminal cases, however, this is a matter of common observation that members of the public do not readily associate themselves as witnesses. Therefore while taking a judicial notice of this common social failing no adverse inference can be drawn against the prosecution just because private individuals were not associated with the recovery. There have to be attending circumstances like police officer's enmity with the accused, a background of litigation between the concerned police and the accused or a reasonable suspicion that the recovery could be planted by the police. In this case, the accused has not levelled any allegation against the Investigating Officer either before the Court of Session or before this Court.
9. Although pendency of cases would not be a valid ground to refuse bail yet if it reflects on the conduct of the accused, the Court can take this fact into consideration and refuse to enlarge the petitioner on bail. The rationale being that if the past conduct of the accused indicates that the accused is habitual and there are likely chances of repetition of the offence, the Court would not extend indulgence as enlarging such an accused on bail would tantamount letting him loose on the society. In PLD 1974 Lahore 44 (Shahban v. State), the past conduct was considered while refusing bail. Similarly, in 1975 PCr.LJ 628 (Muhammad Iqbal v. The Staie), this Court referring to another judgment of this Court observed (at page 629) as under:-- "As observed by Mr. Justice Manzur Qadir, C.J. (as he then was), in Muhammad lqbal v. The State (PLD 1963 Lah. 279) one of the considerations to be kept in mind while granting bail is that as to whether the accused person who is likely to commit other offences while on bail should be let loose on the society. "
10. Four cases under the Prohibition (Enforcement of Hadd) Order, 1979 are pending against the petitioner in various Courts. The offence alleged against him falls within the prohibitory clause of section 497, Cr.P.C. No mala fides or enmity has been attributed to the police. There is, therefore, no merit in this petition which is hereby dismissed.