BHAI KHAN vs THE STATE
This matter concerns a post-arrest bail application filed by the accused, who was charged under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, following the alleged recovery of 18 grams of heroin. The core legal question was whether the accused was entitled to bail given the circumstances of the recovery and the pending chemical analysis report. The applicant contended that the recovery was suspicious due to the absence of private witnesses despite the incident occurring in broad daylight, and argued that the case warranted further inquiry, particularly as the chemical analysis report had not yet been received. The State opposed the application, citing the second proviso of Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979. The Court, after considering the arguments and relevant case law, held that the applicant was entitled to bail. The key principle established is that where the chemical analysis report is awaited and there are questions regarding the recovery process, such as the lack of independent witnesses, the case falls within the scope of further inquiry, justifying the grant of bail.
- Does the absence of a chemical analysis report in a narcotics case constitute grounds for further inquiry for the purpose of bail?
- Can bail be granted in a narcotics case where the recovery witnesses are exclusively police personnel?
- Does the lack of private witnesses in a daylight recovery of narcotics justify the grant of bail?
- Article 3, Prohibition (Enforcement of Hadd) Order 1979
- Article 4, Prohibition (Enforcement of Hadd) Order 1979
- Section 9(A), Control of Narcotic Substances Act 1997
ORDER
ORDER
1. ' Bail is sought in Crime No,221 of 1999 registered at Police Station Dadu under Article 3/4, Prohibition (Enforcement of Hadd) Order, 1979. Earlier a similar request of the applicant has been refused under the impugned order passed by learned Sessions Judge, Dadu.
2. Allegation against the applicant is that the police during the course of their patrolling recovered 18 grams of heroin from the applicant while he was selling the same at Loco-shed in presence of Mashirs namely Constable Asghar Ali and Constable Muhammad Adam.
3. Contentions of learned counsel for the applicant are that the applicant is innocent person and the alleged heroin powder has been foisted on him, no private person has been joined to witness the alleged recovery and only the police constables are said to have acted as Mashirs of recovery though the incident is also said to have occurred in broad daylight and the patrolling party received the spy information in advance. Learned counsel further submitted that the alleged heroin powder has been sent to the Chemical Analyser and his report has not yet been received which makes the matter of allegations against the applicant to be of further inquiry. He contended that in fact the case at the most falls under section 9(A) of Control of Narcotic Substances Act and the police has wilfully applied Article 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 to trouble the applicant. He has referred to case-law reported in 1998 PCr.LJ 122.7, 1999 M LD 921, 1999 M LD 1255, 1999 PCr.LJ 1640 and has submitted that in similar circumstances bail has been granted to the alleged offenders from whom 25 grams of heroin and above have been recovered.
4. ' Learned State Counsel has opposed this bail application and has contended that the applicant is not entitled to the grant of bail in view of second proviso of Article 4 of Order ibid. He has, however, confirmed that the report from Chemical Analyser has not been received as yet.
5. I have considered the arguments of learned counsel for the parties and have also gone through the case-law referred to above by learned counsel for the applicant. Accordingly, I admit the applicant/accused to bail who shall be released on furnishing surety in the sum of Rs,1,00,000 and P.R. Bond in the like amount to the satisfaction of learned trial Court.