1997 PLP 79 (MLD)

Muhammad Khan v. The State 1994 SCMR 1543 ref. Syed Mukhtar Masood Bukhari for .Petitioner. Muhammad Sarwar Bhatti, A.A. ‑G. for the State. Bail is sought in a case registered under Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order (4 of 1979) and Section 9‑B of Control of Narcotic Substances Ordinance, 1995 on the allegation that the petitioner was found in possession of fifty grams of heroin.

2. Learned counsel for the petitioner submits that his client is entitled to be released on bail because in violation of section 103, Cr.P.C. no witness from the locality has been associated at the time of recovery of heroin. The learned Assistant Advocate‑General argues that the petitioner has been found fully involved in the commission of the crime and after the investigation the case has already been sent to the learned Sessions Judge for trial. He has further stated that the petitioner is involved in four other cases of narcotics registered on 27‑8‑1992, 6‑10‑1993, 24‑JO‑1995 and 7‑12‑1995. In view of the antecedents of the, petitioner, the learned law officer vehemently argues that he is not entitled to bail.

3. The contention of the learned counsel for the petitioner that recovery becomes illegal because witnesses from the locality had not been associated at the time of recovery under section 103, Cr.P.C is not of much substance to narcotics cases. The unfortunate conditions that prevail in the society at present are that witnesses from the public do not come forward to give evidence in drug trafficking cases. Persons belonging to drug mafia are too strong and dreadful for ordinary citizens who do not feel safe at their hands in case they become prosecution witnesses against the culprits involved in narcotics cases. It was in the background of this social condition of the Society that the honourable Supreme court has held to several cases that a police officer is as good witness as any other person in cases of recovery of narcotics. In Mushtaq Ahmed v. The State 1995 SCMR 510 the learned Shariat Appellate Bench held that police officials are as good witnesses as others in the matter of recovery of narcotics. In Muhammad Khan v, The State (1994 SCMR 1543), the honourable Supreme Court, while dealing with a case under Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order (4 of 1979). involving recovery of Charas and Opium held as under :

"From the perusal of the judgment cited above, it is manifest that the mandatory provision of section 103, Cr.P.C. requires the association of independent witnesses of the locality to witness the recovery and later on testifying to the same effect before the trial Court. The idea behind the insertion of this provision in the statute is to eliminate chances of false implication and there can be no cavil' with the legal proposition that as fat as practicable the said provision must be strictly followed. There can, however, be no denying the fact that these days disinterested, honest and respectable people normally avoid to involve themselves in such affairs and thereby incur the wrath and enmity of the persons whose premises are being searched and in the event of recovery then to depose against them and assist the Court in their conviction for the crime, in most of the cases heinous ones. In case the police is able to secure the services of persons of the locality who are not strong enough to resist the temptation by the offenders, ultimately the whole exercise undertaken by the investigating agency becomes futile if they make obliging concession in Court in favour of the criminal, of course, not 'intentionally but on account of fear or pressure. It has, therefore, been experienced that unless the police is certain about the integrity of witnesses and are sure that they shall resist all temptation till the final conclusion of the trial by Court, they deem it proper to rest contended with the police officials witnessing the recovery and attesting the recovery memos. Taking the overall prevailing circumstances into consideration, it has been the view of this Court that police officials are as good witnesses as any person from the public provided no animosity is alleged and proved against them and the plantation of the articles in the particular circumstances of the case is not possible." In the case of Said Muhammad v. The State PLD 1990 SC 1176, the learned Shariat Appellate Bench in a case regarding recovery of heroin has found that the police officials are competent witnesses. A learned Single Bench of this Court in Muhammad Jameel v. The State PLD 1996 Lahore 190, in a similar case of drug trafficking declined grant of bail on the ground that recovery made in the presence of police officers was not in violation of section 103, Cr.P.C.

4. It is not denied by the learned counsel for the petitioner that the maximum punishment for the offence is life imprisonment and, therefore, the case is covered by the prohibitory clause of subsection (1) of section 497, Cr.P.C. An accused person involved in drug trafficking is a constant menace to the society at large. In all probability, if enlarged on bail such a person will again indulge in nefarious activities and will repeat the offence. To avoid repetition of offence and to, save the society at large, it is not advisable to show any concession of bail to such a person except, of course, where on valid grounds his case falls either under the first proviso to subsection (1) or his case is covered by subsection (2) of section 497 Cr.P.C. For what has been stated above, this petition is dismissed. N.H.Q./M-95/L Bail refused.