1996 P Cr (PLP)

Muneer Ahmad v. The State 1988 PCr.LJ 293 ref. Malik Tallat Mahmood for Petitioner. Rizwan Rehmat Wasti for the State. Date of hearing: 5th December, 1995. Mamoor Ali, S.I./S.H.O., Police Station Jalla Arain, District Lodhran in the company of his subordinates namely Khalid Mahmood, A.S.I., Muhammad Islam, A.S.I., Khadim Hussain, H.C. and Muzaffar Hussain Constable in official conveyance No.LHN/4867 being driven by Muhammad Mansha, Constable was on Gasht of the area on 30-1-1994 when he information that Abdul Khaliq son of Shah Muhammad (petitioner-accused), a cobbler by profession, was making sale of heroin in his shop. He raided his shop. He caught hold of a person present therein who was none else than Abdul Khaliq son of Shah Muhammad, From his shop at the instance of Abdul Khaliq he took into possession one kilogram of heroin valuing Rs.1,00,000 vide memo. attested by Khadim Hussain, Head Constable and Muzaffar Hussain, Constable. He prepared the site plan and sent the complaint to Muharrir/Thana Clerk of Police Station Jalla Arain who prepared formal F.I.R. No.8, dated 30-1-1994 under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979. Abdul Khaliq petitioner was arrested. The challan against him has been submitted. However, it has been intimated that the trial has not been started. The bail plea of this petitioner has been rejected by the Additional Sessions Judge, Lodhran who has filed this petition to try his luck to be admitted to bail.

2. I have heard the learned counsel for the petitioner as well as the learned State Counsel and gone through the record before me. Learned counsel for the petitioner has canvassed that the alleged recovery is from the shop of Abdul Khaliq which could not be effected without obtaining the search warrant in terms of Article 22 of the Prohibition (Enforcement of Hadd) Order, 1979 and that the continuous period of detention of this petitioner is one year and ten months who is entitled to be admitted to bail.

3. On the contrary learned State Counsel argued that the weight of the recovered heroin is one kilogram and the petitioner is not entitled to be admitted to bail in routine. It is the admitted position that the place of recovery is the shop of this petitioner and it is also the admitted position that no search warrant was obtained by the Police Officer before effecting the raid in the shop of this petitioner. In this view of the matter this petitioner has scored a valuable legal right. In my view an accused who is neither a hardened criminal nor a desperate person is entitled to be admitted to bail as of right under proviso 3 to subsection (1) of section 497, Cr.P.C. when the continuous period of his detention exceeds one year and the trial of the offence has not concluded the maximum punishment of which is life imprisonment. In this regard the reliance is placed on the ruling' published as Muneer Ahmad v. The State 1988 PCr.LJ

293. The petitioner was arrested on 30-1-1994 and today is 5-12-1995. On my query it has been I intimated that no case of the instant nature was earlier registered or is pending, against this petitioner. Hence it is held that it is a fit case for the admission of Abdul Khaliq petitioner to bail.

4. For what has been said above, I accept this petition and admit Abdul Khaliq petitioner to bail in the sum of Rs.1,00,000 (Rupees one lac only) with one surety in the like amount to the satisfaction of the Sessions Judge, Lodhran with the direction to appear before the trial Court on every date of hearing failing which the trial Court may cancel his bail. H.B.T./A-933/L Petition accepted.