1. ' Applicant seeks bail in Crime No,3 of 1997 of Police Station-II ANF registered under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 and sections 6, 7, 8, 9, 10, 11 and 12 of Control of Narcotic Substances Ordinance, 1996 pending before the Court of Special Judge Narcotics for District East, Karachi.
2. ' Briefly the case the prosecution is that on 4-2-1997 F.I.O. Muhammad Khan Dayo received spy information that two foreigners, namely, Pascal and Harmon had provided sufficient quantity of iron nut blots having hereoin powder inside to High Cargo Services situated at Block-6, P.E.C.H.S., Karachi for transporting abroad and M/s. Tanzim Ahmad Khan and Israr Hussain impersonating them as police officials have taken away those nut bolts and have handed over the same to applicant Muhammad Mubin at Ever Green Freight Forwarding Cargo Service Block-6, P.E.C.H.S. On such information complainant Muhammad Khan Dayo and his subordinate under the supervision of Muhammad Baig Incharge ANF-PS-II raised the office of applicant at about 3.35 p.m. And found the applicant, co-accused Tanzim Ahmed Khan and Isar Hussain and recovered 10 sacks likely gunny bags from their possession each containing 170 numbers. The said nut bolts which were broken and from among the same collected heroin powder which weighed to be 10 kilo grams. Out of the same 20 grams were separated and sealed for chemical examination. The rest of heroin powder and the nut bolts were also separately sealed and applicant and co-accused were taken into custody.
3. ' Mr. Rana M. Shamim, learned counsel for the applicant at the very outset stated that on the day of incident the Control of Narcotic Substances Ordinance was not in existence and has lapsed on 30- 10-1996 and a new Ordinance was introduced on 7th March, 1997, as such the applicant cannot be held under this provisions of law and does not press his bail application under the abovementioned sections of the said Narcotics Ordinance. He, however, stresses to be heard on offences of the Prohibition (Enforcement of Hudd) Order, 1979.
4. ' Since Mr. Iqbal Raad, Additional Advocate-General could not controvert the above contentions, as such applicant's counsel was allowed to argue the bail application on the offences under Article 3/4 of Prohibition (Enforcement of Hudd) Order, 1979.
5. ' Learned counsel for the applicant contended that irrespective of this case, three other F.I.Rs have been lodged with regard to the same property on 1-2-1997 and 3-2-1997 in which the applicant has not been nominated, as such he becomes entitled to the concession of bail on the ground of further enquiry. He next argued that having received advance spy information complainant failed to join two independent respectable persons from locality to witness the alleged recovery of heroin powder from the possession of the applicant, hence mandatory provisions of section 103, Cr.P.C.
6. Are violated. He mainly placed stress that recovery is said to have been effected from the office of the applicant which in fact is a place and is not a public place and in the consequence the alleged offence becomes a non-cognizable one as stipulated under Article 16 of the Order and entire exercise becomes without lawful authority and applicant is entitled to bail. He lastly submitted that complainant F.I.O. Muhammad Khan Dayo has investigated the case himself and when Investigating Officer and complainant are one and same, the same does not inspire confidence and the case of applicant becomes of further enquiry. In support of his above contentions, he placed reliance on the case reported in 1994 PCr.LJ 1487, 1996 PCr.LJ 1437, PLD 1997 Karachi 484 and PLD 1997 SC 408.
7. ' Mr. Iqbal Raad, learned Additional Advocate-General vehemently opposed the contentions of applicant's counsel and argued that separate F.I.Rs, referred above have nothing to do with the case of the applicant as in those F.I.Rs, different incidents with different place of occurrence have been shown. According to him, the applicant is involved in smuggling of huge quantity of heroin powder and it was his place which was being used for the transportation to abroad, as such he does not deserve to be released on bail.
8. ' We have gone through the contents of F.I.Rs, No,58 of 1997 and 59 of 1997 of 1997 both of police station Ferozabad and 2 of 1997 of ANF-PS-II, Karachi referred above by applicant's counsel and find that the same have no nexus with the present case and were lodged on 1-2-1997 and 3-2-1997 showing the different quantity of heroin from some other accused. As per case of prosecution a huge quantity viz. 10 grams of heroin is said to have been recovered from the office of the applicant in his presence by breaking the nut bolts which was to be transported abroad. The contention that the place of recovery viz, office of the applicant is a place has no force as according to our view office of the applicant is a place where the right of entry is not reserved and general public has access as it relates to transaction of business of cargo and is meant for booking and sending the cargo and goods abroad. As such the office would be covered under definition of word public 'place' as defined under sub-Article (1) of Article 2 of the Prohibition (Enforcement of Hadd) Order, 1979. For proper appraisal the same is reproduced as under; ' "Public place" means a street, road, thoroughfare, park, garden or other place to which the public have free access and includes a hotel, restaurant, motel, mess and club, but does not include the residential room of a hotel in the occupation of some person."
9. ' In these circumstances the provisions of section 103, Cr.P.C. Will not be attracted in this case which only relates to the search of a place. The case of Kamran alias Ghulam Rasool alias Kaloo v. The State, PLD 1997 Karachi 484 will be of no help to the case of the applicant as firstly the same relates to bail application under section 13-D of Arms Ordinance and a 30 bore pistol is said to have been recovered and secondly that it has been observed very clearly that the rule incorporated in section 103, Cr.P.C. Strictly applies to a search of a place as distinguished from search of a person. It has further been observed that a mere absence of two independent respectable persons of the locality for the search may not be fatal in all cases nor vitiate the proceedings ipso facto if explanation is forth-coming such a constraint of time and place, urgency of the occasion or even unwillingness of those expected to attest recovery. It has also been held at placitum (b) that the requirement of section 103, Cr.P.C. Would not apply to a running vehicle. Hon'ble Supreme Court in the referred case of State through Advocate-General Sindh v. Bashir and others, PLD 1997 SC 408 has held tht police officer is not prohibited under law to be a complainant if he is a witness to the commission of an offence and also to be an Investigating Officer so long it, does not, in any way, prejudice the accused persons.Here in this case applicant has neither alleged any enmity with the complainant nor has shown any reasons of his being prejudiced. The case of Ali Muhammad alias Ali Kuchi v.
10. The State, 1994 PCr.LJ 1487 and that of Sajjad Hussain v. The State, 1996 PCr.LJ A 1437 are also of no help to the case of applicant. Irrespective of the above discussion, the alleged offence being punishable with imprisonment for life also and is covered under prohibitory clause of section 497, Cr.P.C. In our view there appears to be reasonabble grounds to believe that he is guilty of the offence alleged and there are no sufficient grounds for further enquiry into his guilt. Accordingly, bail application is dismissed.
11. ' Above are the detailed reasons for the short order dated 3-2-1998.