1987 PLP 2206 (MLD)

Rehmatullah v. The State 1987 P Cr.L J 1409 ref. Qurban Ali Chohan for Applicant. Sarfraz Ahmed, A . A .-G for the State. The applicant is facing trial under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order 1979 for being found in possession of 274 grams of Heroin. The search of the applicant's house, according to the case of the prosecution, was conducted by Excise Inspector Mardan Shah on 11-5-1987 in presence of two mashirs, namely Hameed and Fateh Mohammad. The bail application moved by the applicant before the learned trial Court was rejected by it vide its order, dated 6-6-1987. The contentions of Mr. Qurban Ali Chohan, learned counsel for the applicant mainly are that, the contraband in Article 16 of the Hadd Order, the offence if any committed by the applicant is not cognizable and that the mashirs of the alleged recovery of the contraband article are not from the same locality from where the article was allegedly recovered. As far as the first argument is concerned, Mr. Qurban Ali Chohan has placed reliance on some cases of this Court including the case of Rehmatullah v. The State 1987 P Cr.L J 1409, wherein after placing reliance upon the case reported in 1985 P Cr. L J 1353, bail was granted to the applicant as he was accused of being in possession of Heroin which had been recovered from his house and the same not being a public place, his case according to Article 16 was not found prima facie cognizable. The Argument of Mr.Qurban Ali Chohan, therefore, does not appear to be without substance as the facts of the present case are more or less identical. Although the Court is not oblivious of the fact that trafficking in narcotics has become a great menace for the entire society but the case of the applicant cannot be discriminated against on that account. Mr.Sarfraz Ahmed, learned A.-A.-G. however, opposed granting of bail to the applicant as according to him the offence alleged to have been committed by the applicant falls within the mischief of Article 3 of the Hadd Order, there being suggestion in the F. I. R. that information had been supplied to the I.O. that the applicant was indulging in sale of Heroin in the premises from where the contraband was allegedly recovered, but admittedly, neither the names of the witnesses who might have supplied such information to the Investigating Officer appear in the challan nor the nature of information allegedly disclosed by the witnesses to the I. C . finds mention in the F.I.R. or challan. Consequently, although the question of law raised is to be ultimately determined by the learned trial Court at the conclusion of the trial, but I agree with Mr.Qurbar Ali Chohan that this is a case of further enquiry as contemplated by section 497(2), Cr.P.C. Bail is, therefore, granted to the applicant in the sum of Rs.2,50,000 with one surety to the satisfaction of the learned trial Court. The heavy amount of the bond has been fixed for the same reasons as stated in Rehmatullah's case; referred to above. S.G.D./A-125/K Bail allowed.