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Petitioner: THE STATE VS Respondent: MUHAMMAD NAZIR and others
Court Name: Lahore High Court Judge(s): Khalil-ur-Rehman Ramday Title: THE STATE vs MUHAMMAD NAZIR and others Case No.: Criminal Miscellaneous No,1326/CB of 1991 Date of Judgment:1991-05-15 Reported As: PLD 1991 Lahore 433 Result: Order accordingly
Judgment ORDER ' The four respondents before me, in pursuance of a suo motu notice for re-call of the pre-arrest and post-arrest bail allowed to them, by Mr. S.M. Elahi, a learned A.S.J. At Lahore, are accused of possession, sale and transportation etc., of 4096 KILOGRAMS (about four Tons) of CHARAS vide F.I.R. No 258 dated 25-5-1990 of P.S. Nawankot of Lahore. 2. The facts culminating in the said notices are that the S.P. (City) of Lahore had received secret information about the sale and business of narcotics, on a large-scale, in the Nawankot and Iqbal Town areas of Lahore. 3. He deputed Tahir Alam, the S.H.O. Of P.S. Iqbal Town, to look into the matter who then tracked down one Muhammad Saleem, a SHARBAT VENDOR who was caught selling CHARAS in the garb of his SHARBAT vending business and 200 grams of CHARAS was recovered from his REHRI. He was arrested and F.I.R. No,216 was registered at P.S. Iqbal Town on 25-5-1990 in this connection. 4. During the course of his interrogation, this Saleem disclosed that he used to purchase CHARAS, from one Mushtaq Hussain and on being led to his house, the said Mushtaq was arrested and 2 Kilograms of CHARAS was recovered from his possession. Another F.I.R. Bearing No,217 was recorded at P.S. Iqbal Town the same day i.e, on 25-5-1990. 5. This Mushtaq in turn disclosed that his source of supply of CHARAS was one Sabir and then led the police party to the said Sabir's ARA MACHINE on BUND ROAD on reaching where, three persons were found present, one of whom managed to escape but the other two were secured by the raiding party. 6. The ones apprehended at the spot were identified as Sabir and Shaukat and the one who had slipped away was stated to be Basharat.
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7. Sabir, led to the recovery of four Kilograms of CHARAS lying in a corner of the room, which was accordingly seized. 8. Shaukat allegedly led to the recovery of forty-six concrete slabs lying in the same premises and each slab had, according to him, 45 Kilograms CHARAS concealed in it. Consequently, 2,070 Kilograms of CHARAS was recovered from these slabs. 9. Thereafter Shaukat led the raiding party to the shop where, on his pointation, the ground was dug which unearthed 20 bags, each containing 75 Kilograms of CHARAS in packets of one Kilogram each. 10. Shaukat also led to the recovery of 522 packets of CHARAS each weighing one Kilogram. 11. The quantity of CHARAS thus recovered at the instance of Shaukat was 4,092 Kilograms and adding 4 Kilograms recovered from the same premises at the instance of Sabir, the total quantity of CHARAS yielded through this raid came to be 4,096 Kilograms which is about Four Tons. 12. Both, Sabir and Shaukat were arrested and an F.I.R. Bearing No,258 was registered at P.S. Nawankot on 25-5-1990 for the alleged commission of offences punishable under Articles 3 and 4 of the Prohibition Order of 1979. 13. After their arrest, Basharat and Shaukat accused desired to be produced before a Magistrate and on being so produced, made statements which were recorded under section 164, Cr.P.C. 14. Shaukat accused admitted the recovery of the above-mentioned quantity of CHARAS but claimed that the same in fact belonged to Seith Nazeer and Kaleem of Garden Town of Lahore. 15. The said statement of Basharat was, however, more revealing. He disclosed:- (a) that he was the lessee and the occupier of the ARA MACHINE from where the aforementioned quantity of CHARAS had been recovered; (b) that Sabir Hussain was his employee and was a CHOWKIDAR at the said ARA MACHINE; (c) that a few days prior to the recovery of the aforementioned CHARAS the aforementioned Nazir had called him to his house in Garden Town, Lahore where Shaukat accused and some others were also present and Seith Nazir had disclosed that trucks carrying their 'MALL' had reached the Ravi Bridge, which 'MALL'. Had to be transported to Karachi which, however, could not be done on account of unfavourable conditions then obtaining in Karachi and asked Basharat to store the said 'MALL' at his ARA MACHINE with a commitment that he would be adequately compensated for the same; (d) that he got tempted and accepted this offer whereupon this 'MALL' was brought to his ARA MACHINE and after being unloaded, was entrusted to Sabir accused; (e) that at the time of unloading of this CHARAS, Shaukat, Nazir, Nawaz Khan, Sarwar Khan and Muhammad Hussain were also present at his ARA MACHINE who, however, left after the same had been unloaded; (f) that four days thereafter, another truck, again carrying CHARAS, was brought to his ARA MACHINE and the same was also unloaded under the supervision of the above-mentioned accused persons and stored there; (g) that at time of unloading of this truck, one concrete slab got broken whereafter Sabir accused CHOWKIDAR, due to greed, started taking out small quantities of CHARAS from the same and started selling it; (h) that after this CHARAS had been unearthed, SEITH Nazir got released on interim pre-arrest bail whereafter threats were extended to him that in case he disclosed their names, his daughters would be kidnapped and he would be murdered; (i) that a brother of the said Nazir's wife was arrested in a CHARAS case in Saudi Arabia and was sentenced to death but the said Nazir had refused to own him whereafter Nazir's wife had warned Basharat etc., that they should not associate themselves with the said Nazir accused because if he could have his brother-in-law killed then he would not spare anyone else either.
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16. It thus appears that Seith Nazir, Shaukat, Sarwar (absconder) and Nawaz ' (absconder) were the owners and the operators of the CHARAS in question. Basharat was responsible for providing his premises for its storage whereas Sabir was the CHOWKIDAR of the said premises and was also selling the CHARAS which he could manage, out of the consignment under his guard. 17. Having stood thus accused, Sabir and Shaukat respondents who were arrested on the spot on 25-5-1990, were released on bail through a consolidated order passed on 16-9-1990 (wrongly dated as 15-9-1990) passed by Mr. S.M. Elahi, A.S.J. At Lahore. 18. On the same day i.e. On 16-9-1990, but through a separate order, Seith Nazir accused was admitted to pre-arrest bail. It may, however, be mentioned that the bail-granting order in respect of Sabir and Shaukat was silent about the bail matter of Nazir accused which was being disposed of the same day and the order passed in favour of Nazir made no mention of bail being allowed to Sabir and Shaukat. 19. Basharat accused, who had been arreated after dismissal of his pre-arrest bail on 4-6-1990 was allowed bail on 2-10-1990. 20. The history of the bail matters of these four accused persons is of significance and is being noticed hereunder:-- ' BASHARAT ACCUSED: (a) 28-5-1990: ' he was admitted to interim pre-arrest bail; (b) 4-6-1990: ' the pre-arrest bail petition was dismissed through a detailed order; (c) 21-6-1990 ' petition for bail after arrest was moved; (d) 25-6-1990 ' through another detailed order, this post-arrest bail petition was also dismissed; (e) the ratio of the two above-mentioned orders dismissing the pre-arrest and the post-arrest bail petitions was that: 4.092 KILOGRAMS of CHARAS had been recovered from a place in the occupation and possession of Basharat accused; that such a large quantity of CHARAS could not have been planted on the accused persons; that at least 25 officials of the police department were present at the time of raid and it would not be possible to plant such a large quantity of CHARAS in the presence of such a large number of police employees; that such a huge quantity of narcotics could not be meant only for possession and personal consumption and the circumstances did demonstrate that the same was meant for sale, inside and outside the country and consequently the provisions of Article 3 of the Prohibition Order of 1979 were fully attracted; that one Allah Rakha who was the owner of the place of recovery had stated that the premises in question had been given by him on lease to Basharat accused and finally that a co-accused of Basharat, namely, Sabir CHOWKIDAR could not have been indulging in the sale and retention of such a large quantity of CHARAS without the knowledge of his employer i.e. Basharat accused; (f) 16-9-1990: ' second petition seeking bail after arrest for Basharat accused was moved before the same learned Court who had dismissed the earlier bail before arrest petition and the first bail after arrest petition; 2-10-1990: ' this petition was allowed and Basharat was admitted to bail on the ground that no doubt Basharat accused had made a confession under section 164, Cr.P.C. And had admitted his possession of the premises from where the CHARAS in question had been recovered yet the offence committed by him did not fall within the prohibitory clause as the accusation was only of
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possession; that the challan had still not been received in Court and finally that the other co- accused of Basharat had already been released on bail and the principle of consistency demanded that he should also be brought at par with his co-accused ' NAZIR ACCUSED: (a) 7-6-1990: ' petitioned the learned Sessions Court for his release on bail before arrest and was admitted to interim pre-arrest bail; (b) this petition was adjourned by the learned A.S.J. From time to time, on one pretext or the other, for almost two months and the interim bail was continued for this period; (c) 15-8-1990: ' this petition was dismissed for non-prosecution; (d) 28-8-1990: ' he approached this Court through Crl. Misc. No.3218/B-90 and was ordered by my learned brother, Abdul Majid Tiwana, J., not to be arrested till 28-8-1990, to enable him to approach the learned Sessions Court afresh for his release on bail before arrest; (e) 27-8-1990: ' submitted a fresh petition for release on bail before arrest and was again admitted to interim pre-:arrest bail which was continued till 16-9-1990; (f) 16-9-1990 ' pre-arrest bail petition was allowed and interim bail already granted was confirmed primarily on the ground: that the case against him had been concocted by the police; that he was not named in the F.I.R.; that there was no direct evidence available against him connecting him with the commission of the offences in question and that the statements of the co-accused, namely, Shaukat and Basharat recorded under section 164, Cr.P.C. Did not have any evidentiary value in view of the provisions of Qanun-e-Shahadat, especially when the same had been recorded in the absence of Nazir. ' SABIR HUSSAIN ACCUSED: (a) 9-9-1990: ' petitioned for his release on bail after arrest; (b) 16-9-1990: ' petition allowed through a consolidated order of 16-9-1990 (wrongly dated as 15-9-1990) which also allowed bail to Shaukat accused on the ground that Sabir was only a CHOWKIDAR., that a very small quantity of CHARAS .(only 'four Kilograms') had been recovered at his instance and finally that the premises in question was in the possession of Basharat accused and there was no occasion for Sabir accused to have led to the recovery of four Kilograms of CHARAS: ' SHAUKAT ACCUSED: (a) 18-6-1990: ' moved the petition for his release on bail after arrest; (b) 18-7-1990: ' released on interim bail after arrest till 26-7-1990 to enable him to attend the CHELUM of his mother; (c) 26-7-1990: ' he did not surrender and instead sent a certificate regarding his illness. Matter adjourned. (d) 30-7-1990: ' a chit was received by the Court that he was still admitted in the hospital. The matter was again adjourned to 7-8-1990 and the accused was directed to submit a proper certificate of his illness and of his admission in the hospital; (e) 7-8-1990:
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' A Deputy District Attorney was present but the case adjourned to 9-8-1990 on the ground that the actual Deputy District Attorney of the Court was on leave; (1) 9-8-1990: ' the accused was present and the case adjourned to 13-8-1990 and further adjourned to 15-8-1990 and again adjourned to 22-8-1990; (g) 22-8-1990: ' the accused again fell sick and the case was adjoured to 12-9-1990; (h) 12-9-1990 ' the D.D.A. Prayed that the interim post-arrest bail had elapsed since long and the accused be taken into custody. Adjourned to 15-9-1990; (i) 15-9-1990: ' the arguments were heard and case adjourned to 16-9-1990 for orders; (j) 16-9-1990: ' petition allowed and the interim post-arrest bail was confirmed on the ground: that the premises from where the CHARAS had been recovered was not in his possession; that Basharat had, through an affidavit, disowned his statement made u/s 164, Cr. P.C.; that according to the F.I.R., the CHARAS in question had been recovered at the instance of Shaukat but according to the statement of Basharat accused, Shaukat had been arrested subsequently from his house; that Basharat was the actual occupier of the premises whose bail had been refused and that the involvement of Shaukat was thus open to further inquiry. 21. On receiving information about grant of bail to the persons accused of such a arge quantity of narcotics I summoned the record from the Court of Mr. S.M. Elahi, a learned A.S.J. At Lahore who had allowed these bails. 22. The facts, the circumstances and the manner which had culminated in these orders, as revealed through this record, I thought, required examination, by this Court. 23. Consequently, I issued notices to the four respondents on 6-4-1991, to defend the bails granted to them. 24. Messrs Rafiq Ahmad Bajwa and Shaukat Rafiq Bajwa, Advocates, appeared for Seith Nazir respondent on the first date of hearing but were then superseded by Dr. A. Basit, Advocate. 25. Khawaja Sultan Ahmad and Mian Abdul Quddoos, Advocates, represented Shaukat accused. 26. Mr. Zafar Pasha Chaudhry, Advocate, appeared for Basharat accused whereas Sabir respondent was defended by Malik Abdul Wahid, Advocate. 27. Mr. Zaeem-ul-Farooq Malik, Asstt. A.G. Appeared for the State. 28. As has been noticed above, Seith Nazir accused had once approached this Court also through Crl. Misc. No. 3218/B of 1990 and it was my learned brother, A.M.Tiwana, J., who had disposed of the said matter by allowing ten days time to him to re-petition the learned Sessions Court for his release on pre-arrest bail and directed that the said Nazir accused be not arrested during that period. 29. The question was whether this order came within the purview of Zubair's case PLD 1986 SC 173 necessitating entrustment of the present matter also to the same learned Bench for disposal. 30. All the learned counsel were of the view that as the order in question did not touch upon the merits of the case and as the said petition had not even been allowed to be withdrawn through the said order, the same did not attract the dictum laid down in Zubair's case, especially when his Lordship had done nothing more than merely granting protection to the accused in question to reach the learned Sessions Court. 31. Considering that the views expressed by the learned counsel were not without merit, I decided to continue to deal with the matter.
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32. Next, I sought assistance of the learned counsel of the parties on the question, whether I could have validly issued notice to the respondents for the cancellation of bail allowed to them by a learned subordinate Court, on the basis of my own information or knowledge and without the matter having been entrusted to me in due course or the same having come to my notice through inspection etc. Of the subordinate Court concerned or even through some matter pending before me. 33. All the learned counsel, were, once again unanimous in submitting that there was no impediment in my way of issuing a such like notice, in the manner that I had, in pursuance of the information or knowledge in whatever way, it may have reached me. 34. Mr. Zafar Pasha Chaudhry, Advocate, even placed reliance on Mushtaq Ahmad's case PLD 1966 SC 126 and on Gushtasab's case PLD 1956 FC 117 to support this proposition. 35. These two questions having been thus resolved, the matter proceeded on to the factual aspects of the case but it was on 7-5-1991, that Dr. A.Basit, Advocate, perhaps on reconsideration of the latter issue, submitted that a Judge of this Court had jurisdiction to deal only with that matter which had been entrusted to him by the Hon'ble Chief Justice and was possessed of no power to hear and decide a matter not so entrusted. 36, The learned counsel then moved even a formal application bearing Cr1. Misc. No. 396/M of 1991 to further press this issue and even prayed that the question being one of public importance, be referred to a larger Bench preferably a Full Bench, for its resolution. 37. I suspended the hearing on the merits of the case and decided to determine this question before proceeding any further in the matter. 38. In support of the proposition, Dr. A. Basit, Advocate, referred me to various provisions which could be invoked for taking, suo motu, cognizance of the matter in hand and for adjudicating the same, namely, the provisions contained in sections 435, 439, 497 (5) and 561-A, Cr.P.C., and drew my attention to the fact that all these provisions empowered only the High Court and not a Judge of the High Court to act in the matter. 39. The learned counsel then placed before me the provisions of Article 192 of the Constitution and endeavoured to demonstrate that a Judge of a High Court was not the same thing as the High Court because the High Court stood defined as a combination of the Chief Justice and all the Judges of the said Court. 40. The proposition canvassed by the learned counsel, on the strength of these propositions, was that the Judges of the High Court were not possessed of any judicial power exercisable by the'High Court and that it was the entrustment of a case to a Judge by the Chief Justice which clothed such a Judge with the authority to decide that case on behalf of the High Court and further that in the absence of such an entrustment, exercise of any jurisdiction, vesting in the High Court, by any Judge or any Bench of Judges, was CORAM NON JUDICE. The learned counsel was also of the view that this mode of conferment of judicial power on a Judge of the High Court by the Chief Justice, to deal with a particular case, was envisaged and authorised by the Rules and Orders of the Lahore High Court. 41. When called upon to quote the Rules which so provide, the learned counsel could do no better than to refer to Rules 2 and 3 of Chapter 3-A of Volume V of the Rules and Orders of our Court. These two Rules are reproduced below for ready reference:-- "2. The Judges will sit singly or in Benches of two or more Judges in accordance with a Roster to be prepared monthly by the Deputy Registrar with the approval of the Chief Justice. 3. Plaints, appeals, applications and petitions for a preliminary hearing will be distributed by the Deputy Registrar two days previously. The distribution lists will be initialled by the Deputy Registrar and no change in that will be made without his authorization and initials. A copy of the list will be
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supplied to the Judges' Readers and to the Bar Room, and the Judges' Readers will bring to the notice of the Judges and the Deputy Registrar any alterations that appear unauthorized." 42. A bare perusal of these two Rules would demonstrate, :say, that it is not the Chief Justice who assigns cases to various Judges or Benches of Judges for disposal but it is the Deputy Registrar of the Court who performs this function and secondly that distribution of cases is merely a ministrial job entrusted by the Court to its Deputy Registrar and is far from a jurisdiction conferring act. 43. If the submissions of the learned counsel, that it is the entrustment of a case to a Judge which clothes him with authority to decide that case, is taken seriously then the result would be that what to talk of the Judges, even the Chief Justice himself would be at the mercy of the Deputy Registrar awaiting to catch his eye for allocation of cases and the consequent conferment of jurisdiction on him by the Deputy Registrar to decide cases on behalf of the High Court. 44. This contention of the learned counsel appears to have been based on mere impressions which impressions are factually incorrect and legally untenable. 45. The source of judicial power of a Judge of the High Court, as declared by the Supreme Court, is clause 26 of the Letters Patent which invests each Judge of the High Court with all those powers which vest in the High Court under the Constitution or the Law. 46. The Rules and Orders of the High Court, which are now in force by virtue of Article 202 of the Constitution, are mere rules of business regulating the practice and the procedure of the High Court and laying down the manner in which these powers have to be exercised. These Rules do not and in fact cannot confer or take away any of the powers which stand vested in the Judges or even add anything to or substract anything from these powers. 47. The submissions made by Dr. A. Basit, Advocate, gave me the impression that he was confusing our Constitutional and legal scheme regarding the vesting and exercise of Judicial Powers with the scheme of the vesting and exercise of Executive Powers, not realizing that the two were absolutely different. 48. A bare persual of Articles 90 and 99 in case of the Federation and Articles 129 and 139, of our Constitution, in case of the Provinces, would reveal that the members or the officers of the Executive do not have any inherent, constitutional or legal, authority to exercise Executive Power. The same vests in the President and the Governor, as the case may be, who then have power to authorise, the officers subordinate to them, to exercise the powers allocated to them according to the Constitution, the law and the Rules. 49. But Articles 176 and 191 in case of the Supreme Court and Articles 192 and 202 in case of the High Courts would demonstrate that the scheme envisaged by the Constitution for discharge of Judicial functions is not similar but is in fact totally different from the scheme relating to the Executive authority. 50. Having thus examined all the Constitutional and legal provisions as also the Rules, I find that being Judge of the High Court, I have the jurisdiction to exercise all the powers which are exercisable by the High Court and which includes the powers conferred on the High Court by sections 435, 439, 497 (5) and 561-A of the Code of Criminal Procedure. 51. Since there is no provision in the Rules and Orders of the High Court prescribing the manner in which a Judge has to exercise the SUO MOTU jurisdiction vesting in the High Court, therefore, I am of the considered opinion that there is no clog on my power to deal with such a matter without the same having been formally entrusted to me and I hold accordingly. 52. In reaching this conclusion, I am guided by Muhammad Ashfaq v. The State PLD 1973 SC 368, Mushtaq Ahmad v The State PLD 1966 SC 126 and Shmas-ud-Din v. Capt. Gauhar Ayab PLD 1965 SC 496. 53. I may mention here that while looking for the earlier cases decided on the above subject, I also came across a judgment from Indian jurisdiction reported as State v. Devi Dayal (AIR 1959 All. 421)
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which laid down that no judge of the High Court could deal with a case unless the same had been placed before him for orders either by the Chief Justice or in accordance with his directions and that any order passed by a Judge, in a case not so placed before him, was an order without jurisdiction. 54. Having examined this judgment in the light of the law relating to the Lahore High Court and in view of the above-referred judgments of our Supreme Court, I state with respect that Devi Dayal's case of Allahabad High Court does not lay down the correct law on the issue under examination. 55. And before I part with this issue, I may also add that despite a prayer made by Dr. A. Basit, Advocate, I did not consider it necessary to refer this question to a larger Bench essentially because guidance was available to me, for the resolution of this problem,. From the Supreme Court, through the above-refer red judgments. 50. On the merits of the case, in defence of the pre-arrest bail allowed to Nazir accused, Dr. A. Basit, Advocate, submitted that the said accused was a very respectable citizen of the country and after insisting on disclosing the riches acquired by him, the learned counsel stated that Nazir accused had a palatial bungalow on the Canal Bank in Garden Town, Lahore; had more than one plazas/buildings and a number of…
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