Shahzad A.I, petitioner seeks bail after arrest in case F.I.R. NO.81 of 1995 dated 21-8-1995 under Article 3/4 of the Prohibition (Enforcement of Hadd) Order (4 of 1979) registered with Police Station Masti Gate, Lahore.
2. It is alleged that on a secret information a raiding party was constituted and the house of the petitioner was raided and it was found that the petitioner alongwith co-accused was carrying Charas, opium and chemical weighing about 3 mound 12 Kgs. The co-accused of the petitioner allegedly ran away and the petitioner was arrested at the spot; the petitioner was found in possession of a loaded revolver .32 bore, four alive cartridges, ten kilo chemical and two kilograms opium; besides three mounds of Charas and a Rifle .222 thrown away by the co-accused at the spot.
3. Bail to the petitioner is urged by the learned counsel on the grounds that the petitioner was aged about 14 yews and four months at the time of the said occurrence, there is no public witness to the alleged raid/recovery, the Challan has not been submitted so far that the petitioner was arrested on 21-8-1995 the prosecution story is concocted one, the co-accused Abdul Latif, father of the petitioner and Sohni, brother of the petitioner were found innocent by the police and have been granted bail by this Court; furthermore, the police did not obtain search warrants from the concerned authorities before carrying out the search of the petitioner's house.
4. The learned counsel for State assisted by the S.P., Lahore, conceded that the co-accused Abdul Hameed alias Sohni and Abdul Latif were found innocent, while co-accused Zulfiqar A.I is still at large, who has the history of dealing in narcotics; the petitioner was arrested at the spot and is involved in the heinous crimes with his elder brother Zulfiqar A.I.
5. I have heard the learned counsel at length and perused the record.
6. No doubt, the co-accused Abdul Latif and Abdul Hameed alias Sohni, were found innocent according to the investigation conducted by the S.P. City, Lahore and were released on bail, the contention of the learned counsel that the petitioner is entitled to bail on the principle of consistency as laid down in case Muhammad Fazal alias Bodi v. The State 1979 SCM R 9 with due respect to their Lordships, the facts of the case in hand are not identical to the supra case and are quite distinguishable and the dictum laid down in supra case is not attracted. Similarly, the contention of learned counsel that the search warrant of the petitioner's house were not obtained and placed reliance on Mukhtar alias Karoo v. The State 1988 PCr.LJ 591 Lahore, which too is not attracted to the facts of the case, for the reason firstly on such a situation, if on the secret information immediate action is required, it is absolutely not necessary to waste time in such formality enabling the accused to commit offence during the period; secondly, the offence in case in hand even otherwise was committed in the street, which certainly is a public place.
7. Further the contention of the learned counsel in the light of dictum laid down in case Babar Islam v. The State 1985 PCr.LJ 2779 Lahore, that the petitioner is in custody for over nine months; is not a previous convict and is not required any more for investigation is also of no help as the delay caused in submitting the Challan is due to the petitioner as the investigation was transferred on the request from the local police to the S.P., Lahore. Further the main accused Zulfiqar A.I, brother of the petitioner, who is indulged alongwithle the petitioner in heinous offences is still at large and bail to the petitioner at this stage means bonus to the petitioner and Zulfiqar for their crime.
8. So far the contention that there is no public witness to the occurrence and the alleged recovery except the police officials, is not convincing in view of the recovery of huge quantity of Charas and opium even otherwise, the police officials are as good witnesses as any other citizen and unless any mala fide is established against them; their deposition cannot be brushed aside simply on the ground that they belong to police department. Even otherwise the writ petitions on which reliance has been placed by the learned counsel prove that co-accused Zulfiqar A.I is a hardened criminal person and is well aware of criminal law. --Lastly, the contention that the petitioner was aged 14 years and a student at the time of occurrence is not convincing as age itself is not ground for bail.
9. The question of bail has to be determined in the light of prosecution version including gravity of evidence, conduct and role attributed to the accused, mode and manner of crime; the Court has to see the material placed before it by the prosecution and to assess whether some intangible evidence is available or not against the accused. The offence under Article 3/4 being punishable with imprisonment for life would not take offence outside exception provided under section 497(1), Cr.P.C.
10. In view of aforementioned facts keeping in view the nature of offence the petitioner does not deserve any concession of bail as the offence is of heinous nature worse than a murder. The judgment of the learned Sessions Judge is well reasoned and does not need any interference. The petition is dismissed accordingly.