1994 P Cr (PLP)

(b) Criminal Procedure Code (V of 1898)

S. 497

Prohibition (Enforcement of Hadd) Order (4 of 1979); Art.3/4-- Bail, grant of

Raid having been conducted on a thoroughfare, possibility of non-availability of a public witness could not be ruled out

Quantity of heroin allegedly recovered from the accused being more than ten grams, case against him fell under the prohibitory clause contained in S.497(1), Cr.P.C.

Bail was refused to accused in circumstances. K.T. Hussain for Petitioner. Saleem Shad for the State. Date of hearing: 25th August, 1993. This application has been filed under section 497, Cr.P.C. by Muhammad Tufail alias Fauji, for his release on bail in case F.I.R. No.573/92 dated 17-10-1992 registered at Police Station Bhai Pheru, Tehsil Pattoki, District Kasur against him under Article 3/4 of the Prohibition (Enforcement of Hadd) Ordinance, 1979 for the recovery of 200 grams of heroin.

2. Succinctly stated prosecution case is that following information that heroin was being sold by the petitioner at Tonga Stand within the area of village Lambe Jageer, Police Station Bhai Pheru, a raiding party consisting of police officials was arranged and after making a constable as a fictitious customer sent him to the petitioner for the purchase of narcotics with a marked currency note of the denomination of Rs.50 to purchase the heroin. The rest of the members of the raiding party concealed themselves al a point wherefrom the petitioner and the fictitious customer were easily available. No sooner did the fictitious purchaser purchase the heroin from the petitioner than all the members of the raiding party overpowered the petitioner and recovered the marked currency note from him as well as heroin weighing 200 grams.

3. The learned counsel for the petitioner contended mainly that the petitioner is in the judicial lock-up for a period of 10 months and yet the trial has not yet commenced, so he is entitled to the concession of bail. It was also argued that the recovery is fake and there is no public witness to the alleged recovery. Being a thoroughfare the police could have easily procured the services of independent witnesses, it is maintained.

4. I have considered the arguments advanced by the learned counsel for the petitioner. I find that nothing has been suggested or highlighted during the arguments to say that the recovery of 200 grams of heroin was not effected from the petitioner or he was not selling the heroin at a public place. Certainly some public witness has not been joined to attest the recoveries but in my humble view that requirement is essential if the recovery is effected from a house or in a residential area where the respectables of the locality are supposed to be present. If a raid is conducted on a thoroughfare, it is possible that no person from the public was found available except the members of the raiding party. Even otherwise in these days the people refraine to associate with recoveries in such like cases and against the such like accused. The quantity of narcotics being more than 10 grams the case against the petitioners, therefore, clearly falls under the prohibitory clause contained in section 497, Cr.P.C. I do not find it a fit case to admit the petitioner to bail so this petition is dismissed. However, if the challan in the case has been submitted, I direct the learned trial Court to conclude this trial within three months from the date of this order and if it was not done, the petitioner if so advised may move for his bail. N.H.Q./M-1342/L Bail refused.