1994 P Cr (PLP)

Asstt. A: G. for the State. The appellant is involved in a case registered against him with Police Station Muzaffarabad vide F.I.R. No.29/1994 dated 13th January, 1994. He moved an application before the District Court of Criminal Jurisdiction Muzaffarabad on 19th January, 1994 seeking his release on bail but his prayer was declined, vide impugned order, dated 24th January, 1994. Hence the present appeal.

2. The allegation against the accused-appellant is that he was found in possession of thirteen grams of heroin at the time of his arrest.

3. Raja Sher Muhammad Khan, the learned counsel for the accused appellant argued that there are no reasonable grounds to believe that the accused-appellant has committed the offence with which he has been charged in the present case. The sample of the alleged heroin was sent to chemical examiner for his opinion but the report of the chemical examiner has not been received till now. The alleged recovery was made at about 8-00 p.m. near Gharipan when the police party was on routine patrol duty. The place from where the alleged recovery was made, is a busy area where different persons of different tribes are running their shops and restaurants, but no person from public was associated while making recovery of the alleged heroin from the possession of the accused-appellant. Even in the recovery memo it has not been mentioned that the alleged heroin which was allegedly recovered from the possession of the accused-appellant was weighed before mentioning its weight in the recovery memo. With these submissions he argued that the case of the prosecution is based on false allegations, as such the concession of bail was improperly declined to the accused-appellant.

4. While controverting the arguments of the learned counsel for the accused-appellant, the learned Assistant Advocate-General argued that police officials, who have recovered the heroin from the possession of the accused appellant, have signed the recovery memo. He further argued that the public do not come forward now-a-days as witnesses in such like cases. When no enmity or malice has been attributed to police officials, then in such like cases, the police officials are trustworthy witnesses. He supported the impugned order, under appeal.

5. I have considered the respective submission advanced by the learnedcounsel for the parties and have gone through the record of the case carefully.

6. In this case, admittedly challan has not been filed against the accused appellant as yet on the ground that opinion of chemical examiner has not been received so far. Therefore, in the absence of the report of the chemical examiner, it cannot be said with certainty that in fact heroin was recovered from the possession of the accused-appellant. Furthermore, under section 103, Cr.P.C. the search should have been conducted and recovery made in the presence of respectable persons from public. The law which presumes innocence of the accused-persons till final judicial verdict about him, has not left the accused-persons at the mercy of the Investigating Officer and his associates. However, if-search is conducted and recovery made from a place where persons from public could not be associated with search on account of exceptional circumstances, then in such like cases, the statements of police officials are to be believed, particularly when no allegation of dishonest investigation is levelled against such police officials. In the present case, the alleged search was conducted and recovery made from a commercial area at 8-00 p.m., from the accused-appellant and no reason has been given as to why 8 any person from public has not been cited as Masheer against the accused appellant, therefore, the accused-appellant, on account of these facts, is entitled to the concession of bail.

7. Under these circumstances, I set aside the order under appeal and admit the accused-appellant to bail in the sum of Rs.50,000 with one surety in C the like amount to the satisfaction of any Magistrate 1st Class, Muzaffarabad on furnishing the aforesaid bonds the accused-appellant shall be released from the custody forthwith, if not required in any other case. N.H.Q./8/Sh.CA. Bail granted.