P L D 1992 Lahore 57 (PLP)

During the course of interrogation in case F.I.R. No.113/91 of Police Station Bhikhi of District Sheikhupura, which stood registered with respect to the alleged commission of offences punishable under Articles 3 and 4 of the Prohibition Order No.4 of 1979, Munir Ahmad accused had disclosed that some quantity of heroin was available even with his brother, namely, Muhammad Saleem.

2. It was in pursuance of this disclosure that a raiding party consisting of an Assistant Excise and Taxation Officer, an Inspector of Excise and Taxation and some police officials, raided the house of the said Saleem which had, inter alia, led to the recovery of 1‑1/2 kilograms of heroin from the possession of the said Saleem and eighty grams of heroin from the possession of Sharif petitioner, both of whom had been apprehended at the spot while trying to escape from the said house.

3. The learned counsel for the petitioner convasses bail for Sharif petitioner on the grounds that he had been falsely implicated in the case; that the provisions of Article 3 were not attracted in the case of the petitioner as there were no allegations against him of sale, manufacure, transportation or trafficking etc. of the said narcotics; that only ten grams of heroin allegedly recovered from the possession of the petitioner had been sent for chemical examination which took the petitioner's case outside the prohibitory clause of section 497(l) of the Cr.P.C. that the offences alleged against the petitioner were not cognizable and thus his arrest and ' conseqent detention were not lawful; that the raid in question had been conducted in violation of the provisions of section 103, Cr.P.C. and finally that in the circumstances, the petitioner was entitled to be admitted to bail.

4. The learned counsel has not been able to offer any explanation as to why the petitioner who was a resident of Faisalabad should have been falsely involved in a case of Police Station Bhikhi which falls within the district of Sheikhupura. He also has no reasonable explanation for the petitioner's presence in the house of Saleem accused.

5. It has already been held by me in Nazir Ahmad's case (CrI. Misc. No.1326/CB‑91), that the intention of the Legislature in enacting a separate A provision relating to the possession of narcotics and in prescribing a lesser penalty therefor, was indicative of the fact that Article 4 of Order 4 of 1979 covered only those cases where the intoxicant in question was possessed by the accused person for his personal consumption and not where the accused was possessed of the same for commercial purposes.

6. Eighty grams of heroin is no small quantity and the possession of such a quantity of heroin by Sharif petitioner strongly militates against an inference that the same was being retained by him for his personal consumption. Needless to say that he could not have come from Faisalabad all the way to Sheikhupura only to consume heroin especially when he had been found in the house of Saleem who himself and whose brother Munir also stand accused of trafficking in the said intoxicants.

7. Therefore, I find it difficult to hold, at least for the present, that the, provisions of Article 3 were not attracted in the case of the petitioner.

8. Needless to say that Article 3 is admittedly an offence which is cognizable and in the circumstances it cannot be said that none of the offences alleged against the petitioner was cognizable.

9. The provisions of section i03 of the Cr.P.C. regulate searches conducted under Chapter V11 of the Cr.P.C. and the present is undeniably a case not falling within the said Chapter.

10. In any case the reluctance on the part of the members of public to 113 offer themselves as witnesses in such like matters is by now a judicially recognized fact and no adverse inference can be drawn against the prosecution only because private persons had not been cited as witnesses.

11. There is nothing in law which provides that a person accused of the possession or trafficking etc. of narcotics would be held liable only for the quantity of narcotics which had been sent for chemical examination espcially if it can be demonstrated on record that whatever quantity of narcotics had been sent for chemical examination, had been drawn from the quantity of narcotics recovered from or at the instance of the accused. .

12. Consequently, there is no merit in the submission that since only ten grams of heroin, out of the quantity allegedly recovered from the possession of the petitioner, had been sent for chemical examination, therefore, the petitioner would be liable only for the said quantity of heroin and for no more.

13. In view of what has been noticed and discussed above, I find no merit in this petition which is accordingly dismissed. M.BA./M‑61/L Petition dismissed