1990 PLP 190 (MLD)

(i) That there is no witness of the alleged sale of one gram of heroin to the alleged false customer. (ii) That although, it is alleged that 60 purris of heroin were recovered from the petitioner yet only one gram of heroin has been sent to the Chemical Examiner for his report thus falsifying the story of the prosecution. (iii) That the story of the prosecution is that they mixed up the heroin containing in the 60 purris allegedly recovered and made a sample of one gram of heroin therefrom for submission to the Chemical Examiner for his report, which is against the law and prosecution could not arbitrarily do so, and therefore, it gives rise to grave doubts about the quantity recovered and makes the case one of further inquiry. (iv) That the allegation of recovery of 60 Purris is false and has only been made to bring the case of prosecution within prohibitory clause of section 497, Cr. P.C. (v) That according to the F.I.R. the occurrence had taken place on 11‑9‑1988 but till date there is no report of the Chemical Examiner to link the petitioner with the alleged recovery of heroin and, therefore, there is no evidence except the complaint linking up the petitioner with the alleged recovered heroin. (vi) That no incriminating independent evidence has come on record against the petitioner till date whereas the challan has been submitted to the trial Court on 20‑9‑1988. (vii) It is alleged that the recovery of heroin was effected at the gate of Tehsil Office but there is no witness of the vicinity of the alleged recovery. (viii) The petitioner/accused is no longer required by the police.

3. To support his contention the learned counsel relied upon the following authorities: (Abdullah v. The State) 1986 P Cr. L J

899. Herein the bail was granted to the accused charged under Articles 3/4 Prohibition (Enforcement of Hadd) Order, 1979 on the ground that although it was alleged that 15 packets of heroin had been recovered from the possession of the accused yet only two packets of the same had been sent to the Chemical Examiner. (Fareed Khan v. State 1988 P Cr. L J 20691, (Imran Hussain Shah v. State P L D 1987 F S C 6) and (Sher Muhammad v State 1987 P. Cr. L J page 1022) were also cited to support his contentions which are to the same effect as the first one.

4. The learned counsel for the State opposes the bail on the ground that the Article 4 comes under the prohibitory clause of section 497, Cr.P.C. as the punishment is for life imprisonment where the recovery of more than 10 grams of heroin is proved. Secondly it was urged that the Note of rupees fifty, which was marked, was recovered from the possession of the accused which is supported by an independent witness as well as of the sale of one gram in lieu thereof and it was further contended that there are independent witnesses of the recovery of 60 Purris/25 grams of heroin recovered from the petitioner, and that as the occurrence is said to have taken place at 4‑30 p.m., therefore, all the witnesses of the occurrence are natural witnesses, and that no specific allegation of enmity has been alleged against the witnesses by the petitioner, and that there are two cases already registered against the petitioner under section 294, P.P.C. vide F.I.R. Nio.173/83 and F.I.R. No. 212/87 under Articles 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 respectively. It was further urged that it is not possible for the prosecution to send some samples from each and every Purri to the Chemical Examiner. It is further contended that the petitioner has nowhere stated that the recovery from him was not of heroin but of antimony or some other harmless powder. It was lastly argued that bail on the basis of delay in the present case can only be after a lapse of two years as the maximum punishment of the offence charged is life imprisonment.

5. The learned counsel for the State was asked to confirm whether or not only 1‑1/2 grams of heroin had been sent to the Chemical Examiner for his report vide two different samples in respect of the alleged sale and recovery respectively.

6. The learned counsel for the State confirmed that 1/2 gram of heroin out of the one gram allegedly sold by the petitioner to the fake customer and one gram of heroin out of 25 grams/60 Purris of heroin recovered from the petitioner was sent to the Chemical Examiner for his report.

7. In view of the confirmation by the learned counsel for the State that only 1‑1/2 grams of heroin has been sent to the Chemical Examiner for his report, and in view of the facts and circumstances of the case as stated by the learned counsel for the petitioner and not refuted by the learned counsel for the State, and placing reliance on the authorities cited by the learned counsel for the petitioner, the petitioner is admitted to bail in the sum of Rs.50,000 with one surety in the like amount to the satisfaction of A.C./Duty Magistrate, Bahawalpur. N.H.Q./H‑139/L Bail granted.