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Criminal Bail Application No.404 of 1987, decided on 1st May, 1987.

---S.497--Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4--Bail-- Accused allegedly found selling heroin and prima facie liable under Art: 3(2) to imprisonment for life--Recovery from accused of more than 10 grams--Application for bail refused--Trial Court however was directed to examine material witnesses within two months and accused granted liberty to repeat application for bail after that period, if so advised.

1986 P Cr. L J 1574; 1986 P Cr. L J 2805; Talib v. State Criminal Bail Application No.1883 of 1986 and Taj Muhammad v. State Criminal Bail Application No.1273 of 1985 considered.

Mubarik Hussain Siddiqui for Applicant.

Sarfraz Ahmed, A.A.-G. for the State.

The applicant is facing trial under article 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 before the learned Sessions Judge, Karachi, East.

The brief facts of the prosecution case are that on 16-2-1987 Inspector Abbas Ali S.H.O. P.S. Shah Faisal lodged a report that he was busy on patrolling the area, when he received spy information that a young man was selling heroin at the corner of Natha Khan Goth, while sitting in a white car. On receipt of this information, he alongwith his staff and witnesses Ch. Abdul Ghafoor and Muhammad Aslam went there, while he was watching the passage of Natha Khan Goth at 5-45 p.m. a car bearing No.123-905 came from the City side and stopped near scrap house Wahab Kabari. Two persons reached near the car, and the person sitting in car gave something to them. In the meanwhile, the complainant and his party encircled them and arrested them in presence of witnesses. The person, who was sitting in the car disclosed his name as Feroze Khan, and on search from his pocket 10 packets of heroin, wrapped in white paper and 10 packets wrapped in cloth lying on the seat were recovered. That out of those two persons, one person disclosed his name as Muhammad Iqbal son of Muhammad Ilyas, and on search 10 packets wrapped in paper weighing 10 grams were recovered from his pocket. The other person disclosed his name as Noor Muhammad and from his hand one packet of heroin weighing 10 grams was recovered. Therefore, all the persons were arrested. Thereafter complainant came to the police station and lodged report on behalf of the State. The applicant moved an application for bail before the learned Sessions Judge, Karachi, East, but the same was rejected vide order dated 21-2-1987, hence this application.

I have heard Mr. Mubarik Hussain Siddiqui, learned counsel for the applicant, Mr. S. Sarfraz Ahmed A.A.-G. appearing for the State, and have also gone through the police papers.

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.

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