1989 P Cr (PLP)

‑‑‑S. 103‑‑Provisions of S.103, Cr.P.C. would not be attracted in case of a search in a bus. S. Zafar Abbas Zaidi for Petitioner. Ejaz Muhammad Khan, Asstt. A.‑G. for the State. Date of hearing: 18th January, 1989. This is an application for bail on behalf of Ghulam Farid petitioner.

2. Briefly stated facts of the prosecution case are that on 16‑7‑1988 at 18‑50 hours during a routine checking of vehicular traffic near Police Station Ghoriwala, District Bannu, Hameedullah A.S.I. stopped Bus No. DNB‑2355 bound for Multan, conducted the personal search of its passengers, which led to the recovery of 15 grams of heroin from the person of Ghulam Farid alias Bindi. It was secured through usual recovery memo. The accused was arrested and a case was registered under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter called as the Order) was registered.

3. S. War Abbas Zaidi, learned counsel for the petitioner contended; Firstly that the search of the person of the petitioner was in violation of the mandatory provisions of section 103 of the Code of Criminal Procedure and placed reliance on Ahad Sher v. State P L D 1980 Pesh. 119; secondly, that the contraband powder was admittedly weighed with 21 pieces of the wrapping paper which then weighed 15 grams, that it was resorted to with a view to bring the case of the petitioner within the mischief of second proviso to Article 4 of the Order which would in turn attract the prohibitory clause of subsection (1) of section 497, Cr.P.C. and; Lastly, relying on the observations of the Supreme Court in Amin v. The State P L D 1972 SC 277 that even for the purpose of bail, law is not to be stretched in favour of the prosecution.

4. Mr. Ejaz Muhammad Khan, the learned Assistant Advocate‑General, has opposed the plea of bail advanced on behalf of the petitioner and contended that no material against the police officials in this case had been brought on the record to substantiate the plea of mala fides. He submitted that 15 grams of heroin was recovered from the petitioner's possession on routine checking and that, therefore, legally he was not entitled to the concession of bail. He repelled the contention of the learned counsel appearing on behalf of the petitioner and referred to Shah Nawaz v. State P L D 1986 FSC 242 and Muhamamd Shah v. State P L D 1984 SC 178 (Shariat Appellate Bench) wherein it has been observed that a bare reading of section 103 ibid would make it crystal clear that it refers to search of places and not of persons.

5. The first contention raised on behalf of the petitioner that provisions of subsection (1) of section 103 ibid are equally applicable to the search of persons is ex facie not tenable. The latest view which confirms the one in the two precedents cited on the proposition has been expressed by the Shariat Appellate Bench of the Supreme Court m Malik Aman v. State 1986 S C M R 17 wherein it has been observed that in a case of search made in bus by a constable, section 101 would not be attracted.

6. The contention of the learned counsel for the petitioner that the inclusion of 21 wrappings of paper in weighment of the heroin was mala fide with a view to increase the weight and that the circumstance as how two grams of heroin sent for chemical examination turned out to be only one gram cannot be considered at this stage. It would be for the trial Court to examine this aspect of the case.

7. From the tentative assessment of the evidence, I am of the view that case of the petitioner is not fit for bail. Prima facie the offence falls within the prohibitory clause of subsection (1) of section 497, Cr.P.C. The application is, therefore, dismissed. S.A./777/P Bail refused.