1987 PLP 2164 (MLD)

The contentions of Mr. Mubarik Hussain are that the heroin was not weighed at the time of recovery and that the same has been foisted upon the applicant. It was further contended that incident took place on 16-2-1987 but the chemical report has not yet been received .from chemical examiner, and that the applicant was respectable educated young man, and therefore, he was entitled to bail. In support of his contention he has relied upon the following: (1) 1986 Pakistan Criminal Law Journal 1574. (2)1986 Pakistan Criminal Law Journal 2805. (3) Unreported case of Talib v. State Criminal Bail Application No.1883 of 1986, and (4) Criminal Bail Application No.1273 of 1985 Taj Muhammad v State. Mr. S. Sarfraz Ahmed, learned A.A.-G. appearing for the State has vehemently opposed the grant of bail, and has contented that the applicant was found selling herein to the co-accused and therefore, no matter, whatever the weight of heroin might be, his case will fall under article 3, sub-Article (2) and therefore, it is punishable for imprisonment for life. He has further submitted that according to Mashirnama and FIR forty grams of heroin has been secured from him and therefore, even under Article 4 he will be liable for imprisonment for life. I have considered the contention of the learned counsel appearing for the applicant as well as for the State. The prosecution case clearly shows that the applicant was found selling heroin to the co-accused, and therefore, prima facie he will be liable under article 3, sub-article (2) which is punishable with imprisonment for life. Even the recovery is forty grams of heroin, and therefore, it being much more than ten grams, there is no question that the margin in weight could be more than thirty grams, and since prima facie it is more than ten grams, there is no question of further enquiry regarding net weight. In Niaz v. The State 1986 P Cr. L J 1574; the heroin recovered was only two grams; and the applicant had fled away from the spot after throwing away a packet allegedly containing heroin, and in addition thereto the result of sample of heroin sent to chemical examiner was also not 'received. In Lalbaz v. The State 1986 P Cr. L J 2805 the bail was granted on the ground that according to the prosecution twenty grams of heroin were recovered from the applicant, while chemical report showed that it was fifteen grams. That the chemical examiner had not taken into consideration the weight of brown paper packet, as the heroin was sent to him in plastic packet which was wrapped in brown paper packet. Since there was conflict as to the quantity of heroin actually recovered from the applicant, bail was granted. In criminal bail application No.1883/86, Talib v. The State, the bail was granted because the contraband articles were sent to the chemical analyser for examination nearly after one month. In Criminal Bail No.1273/85, the allegation was that about fifteen grams of heroin were recovered from the applicant Taj Muhammad, and the bail was granted on the ground that since the heroin was not weighed at any stage, therefore, it could not be said with certainty, that its weight was fifteen grams. In the present case, heroin recovered from the applicant is said to be about forty -grams and there can be some margin but not margin of more than thirty grams. Moreover, the allegation of selling the heroin is here and in such a case, the question of weight looses its importance. In view of the above discussion, it is clear that the applicant having been found selling heroin, cases relied upon by the learned counsel for the applicant are distinguishable and are not applicable to the facts of the present case. Since the case of the applicant is prima facie covered by Article 3(2) and Article 4(2). Prohibition (Enforcement of Hadd) Order 1979, for which punishment is imprisonment for life, therefore, the application is dismissed for the time being. However, I direct that the learned trial Judge shall examine the material witnesses within two months from the date of receipt of this order, and the applicant will be at liberty to repeat his bail application thereafter, before the learned trial Judge, if so advised. K . B. A . /F-22/ K????????????????????????????????????????????????????????????????? Application dismissed.