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Petitioner: Hakim MUMTAZ AHMED and another VS Respondent: THE STATE
Court Name: Supreme Court of Pakistan Judge(s):Iftikhar Muhammad Chaudhry, Hamid Ali Mirza, Sardar Muhammad Raza
Khan Title: Hakim MUMTAZ AHMED and another vs THE STATE Case No.: Criminal Petitions Nos. 236 and 669-L of 2001 Date of Judgment:2002-04-17 Reported As: PLD 2002 Supreme Court 590 Result: Bail allowed Judgment ORDER IFTIKHAR MUHAMMAD CHAUDHRY, J.---Petitioner Hakim Mumtaz Ahmad seeks leave to appeal against judgment, dated 16th July 2001 passed by learned Division Bench of Lahore High Court, Lahore whereby bail granted to him by Additional Sessions Judge Mandi Bahaudddin (Muhammad Alamgir Khan) dated 11th November, 2000 has been withdrawn. In the impugned judgment observations have also been made for initiating action against Mr. Muhammad Alamgir Khan the then Additional Sessions Judge, Mandi Bahauddin, therefore, he has also filed Cr.P.L.A. No,669-L of 2001 for annulment of the same. As such, we intend to dispose of both the matters by means of instant judgment. 2. Precisely stating facts of the case are that vide F.I.R. No 358 of 2000 dated 9th September, 2000 a case was registered against Hakim Mumtaz Ahmad on the complaint of Muhammad Anwar, S.-I., CIA Staff under Articles 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 and sections 9/8 of Control of Narcotic Substances Act, 1997. It is mentioned in the F.I.R, that on the day of incident when complainant (Muhammad Anwar, S.-I.) alongwith police party was present in front of Nagina Cinema, Mandi Bahauddin he sent decoy customer alongwith tainted currency notes to purchase opium from the Dawakhana of Hakim Mumtaz Ahmad. The customer went to his Dawakhana and came back with purchased opium. On this raid was conducted in his shop, during course whereof 142 grams of opium was recovered from the pocket of his shirt alongwith Rs,3,000. Out of the recovered opium 10 grams were taken out for the purpose of obtaining report of Chemical Analyser.
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3. After registration of the case petitioner preferred an application for bail before arrest, which was declined, as such he was taken into custody. Later on he submitted an application for grant of post-arrest bail, which was rejected on 26-9-2000. Relevant para. Therefrom is reproduced hereinbelow:-- ".......Though the accused/petitioner has claimed his innocence and alleged mala fide on the part of the police, but from tentative assessment of case file, it has not been established. The menace of narcotics is increasing day by day and it is creating bad effect on our society. 3. Keeping in view the aforementioned circumstances, I see no justification to release the accused/petitioner, especially at this initial juncture. Let the report of the chemical examiner be received and let the challan of this case be submitted, whereafter the question of grant of bail or otherwise may be looked into. With these observations, without going into the merits and demerits of the case, the bail petition stands dismissed." It may be noted that in view of the observations so made by the Additional Sessions Judge, Mandi Bahauddin neither report of the Chemical Examiner was received nor challan was submitted by the prosecution in the Court, therefore, petitioner repeated application for bail which was allowed vide order dated 11-11-2000. Relevant para. Therefrom is reproduced hereinabelow:-- "2. Arguments heard and record perused. In this case, accused/petitioner Mumtaz Ahmad has earlier moved for post-arrest bail, but his petition has since been dismissed vide order dated 26-9- 2000 wherein it was observed that report by the Chemical Examiner has not been received and question for grant of bail or otherwise may be looked into after the receipt of the report by the Chemical Examiner and after the receipt of challan, but the local police has not, so far, bothered to collect the report. Incomplete challan has also not been put in Court despite the fact that accused/petitioner Mumtaz Ahmad was arrested on 9-9-2000. The prosecution is bound to submit complete challan within 14 days after judicial custody of the accused, but in this case, relevant provisions of law have also been violated. The police is not required to play with the liberty of common citizen at the own whims Prima facie, the detention of accused/petitioner after 14 days of remand, without submission of challan, has become illegal. Keeping in view these circumstances, I see no other alternate, but to release the accused/petitioner on bail." 4. It is important to note that order dated 26-9-2000 passed by Additional Sessions Judge was challenged by the petitioner before Lahore High Court by invoking its jurisdiction under section 498, Cr.P.C. But pending decision of said bail application, another application was repeated before Additional Sessions Judge, who allowed the same vide order reproduced hereinabove. As such, a request was made for permission to withdraw the application from learned High Court, which was declined on 21-11-2000. The learned Judges postponed the case for 22-11-2000 and directed the State Counsel to find out from the concerned jail as to whether petitioner was still in custody or he has been released on bail. On this it transpired that he has secured his release on bail, as such notice was issued to petitioner to show cause as to why the bail secured by him from Additional Sessions Judge, Mandi Bahauddin during pendency of petition for bail before the High Court may not be recalled. Consequently on 9th October, 2001 vide impugned judgment learned Division Bench of High Court cancelled bail of the petitioner. 5. At the time of hearing of petition it transpired that story put forward by the prosecution as mentioned in the F.I.R prima facie is not convincing, therefore, to ascertain correct position record of the case was summoned. On examination of record it transpired that challan of the case has not been submitted within 14 days as required under section 173, Cr.P.C. Besides it, neither the investigation of the case was properly supervised by the then S.P., Mandi Bahauddin nor District Attorney took interest in processing the challan according to law, therefore, notices were issued to all of them to appear and explain their positions.
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6. It is surprising to note that petitioner was arrested on 9th September, 2000 by the police and initially he remained in custody up to 11th November, 2000 when he was released on bail because of non-submission of challan against him. We were informed that after registration of the case S.R.O. On receipt of report from Investigating Officer prepared challan on . 15th September, .2000 which was endorsed by D.S.P. On 18th September, 2000 and as per note appended therwith it was sent to Prosecution Branch on 14th October, 2000 from where it was put before the District Attorney namely Akhtar Hussain on 8-11-2000 who statedly returned the same on the said date with certain objections. But those objections are not available either on the police file or on judicial record. We inquired from Mr. Akhtar Hussain, District Attorney present in the Court the nature of the objections on the basis of which he did not forward challan to the Court, he could not answer satisfactorily. Mr. Muhammad Nawaz, the then Sub-Inspector of Police/Investigating Officer is also present in the Court and he stated that to his belief and knowledge no objection was communicated to him. Somehow the case file remained pending with the police and again it was sent to District Attorney on 4th January, 2001 and ultimately final report/challan was submitted in Court on 17th January, 2001. 7. The above statement of facts makes it clear that Investigating Agency/Police of Mandi Bahauddin had no justification to detain the petitioner in custody from the date of expiry of period of remand of 14 days till submission of challan i,e, 17th January, 2001. For this negligence the Judicial Magistrate who has been remanding the accused in judicial custody in terms of section 344, Cr.P.C. Would be equally responsible because if he had insisted upon the Police/Investigating Agency to at least submit interim challan failing which accused would not be remanded to custody, the police had no option but to comply with his order. Difficulty is that in such situation neither the police nor the District Attorney nor the Magistrate granting police as well as judicial remand are ready to take responsibility in not complying with the provisions of section 173, Cr.P.C. Which prescribes procedure for submissions of challan even if investigation has not been completed. But all the concerned functionaries i,e, Investigating Agency/Police, District Prosecution Agency and Presiding Officer of the Court who had been granting remand of the accused either to the police or the judicial remand demonstrated inefficiency in performing their statutory obligations thus exposing themselves for departmental actions under relevant Efficiency and Discipline Rules, accordingly. 8. It is not only this case in which it has been noticed that the Investigating Agency as well as District Attorneys have failed to submit challan of the case registered against accused within the stipulated period but in majority of the case the police report/challan under section 173, Cr.P.C. Is not filed despite expiry of stipulated period due to which accused persons involved in criminal case remain languishing in custody without trial and ultimately for such reason accused claim bail despite their detention in the offences which are heinous in nature because denial of bail to an accused in non-bailable offence under the circumstances would be against the principle of administration of justice. Admittedly, for such delay no one else except the police and the office of the District Attorney can be held responsible for not submitting the challan. Surprisingly, in the instant case, the representatives of both the agencies i,e, the then Superintendent of Police, Mandi Bahauddin and the District Attorney instead of accepting their fault found their rescue for not complying with the mandatory provisions of law under section 173, Cr.P.C. Started blaming each other but ultimately failed to furnish satisfactory explanation for not complying the process of submission of challan within stipulated period of 14 days. Factually both the agencies are equally responsible for not complying with the provisions of law because as far as Superintendent of Police is concerned he is not only a figure head of the District Police but it is his one of the duty to adopt effective devices to ensure that criminal cases registered by the Police within his jurisdiction are processed strictly in
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accordance with law and if it is not possible to submit final challan then he should ensure submission of at least interim challan in terms of proviso to section 173(1), Cr.P.C. And if the S.H.Os. Or Investigating Officers are found negligent in not complying with the mandatory provisions of law, he should initiate action against them promptly and if he himself is contributory in this behalf for any reason then action could also be initiated against him departmentally as well as by the Courts for causing delay in the trial of cases and detaining accused person in custody without trial contrary to the provision of Article 9 of the Constitution of Islamic Republic of Pakistan because this Article provides that no person shall be deprived of his life or liberty save in accordance with law. Therefore, if an accused is arrested in a cognizable offence by the police or law-enforcing agencies, it is his right to be dealt with save in accordance with law i,e, a justification has to be shown for his detention in custody because on the arrest of an accused initially he can be detained without permission of the Court for a period of 24 hours under section 61, Cr.P.C. And if during this period investigation of the case is not completed and the police has reasons to believe that the accusation or information is well-founded then he shall be produced before the Magistrate who after having satisfied himself about progress of the case may authorize detention of such person in police custody for a period not exceeding 15 days as a whole under section 167, Cr.P.C. On completion of maximum period of police remand the accused becomes entitled for trial and every Investigating. Officer is duty bound to complete interrogation of the accused within stipulated period and no unnecessary delay is tolerable in this behalf because after completion of investigation, challan is to be submitted before the Court of competent jurisdiction through the Public Prosecutor. As per section 344, Cr.P.C. It .Is the duty of the Police Officer to furnish justification for detention of accused in custody if challan under section 173, Cr.P.C. Has not been filed and trial has not commenced, otherwise in absence of report of a police officer of challan, detention of the accused would be unjustified and against the provisions of law. 9. Delay in submission of challan/police report under section 173, Cr.P.C. Has been noticed invariably in the criminal cases, despite the fact that section 173 of the Code of Criminal Procedure has been amended by Act XXV of 1992 whereby a facility has been extended to the Investigating Agency for submitting interim report the period of 3 days from the completion of period of 14 days of the police remand but instead of deriving benefit from this provision of law, the Police Authorities including S.H.Os. And high-ups up to the rank of Senior Superintendent of Police never bothered to comply with this mandatory provision of law. 10. Undoubtedly section 173, Cr.P.C. Was amended vide Act XXV of 1992 with a view to improve performance of the Police Department and simultaneously to stop the police from adopting protracted investigation process for one of the other pretext but the police authorities had in fact rendered the provisions of section 173, Cr.P.C. Ineffective by not following its spirit. In this behalf it is to be noted that unconvincing delaying tactics are adopted by the concerned investigating officers as it has exactly happened in the instant case because the then Superintendent of Police Mandi Bahauddin who is supposed to be incharge of criminal cases as per rule 5.1, Chapter 5 of the Punjab Law Department Manual, 1938 failed to furnish reasons for not submitting the challan before the Court through Public Prosecutor as per the provisions of section 173, Cr.P.C. Similarly Public Prosecutor who is also the Incharge of District Prosecution Agency in terms of rule 5A.2, Chapter 5- A of the Punjab Law Department Manual, 1934 could not satisfy the Court for not submitting the challan/police report final or interim within the stipulated time. 11. It may be noted that in the case of Mazhar Hussain v. Ishtiaq Hussain and another (PLD 1990 Lahore 249) it has been held that primarily it will be the function of the District Prosecution Agency to finally scrutinize the charge sheet or report under section 173, Cr.P.C. Of a case and on receipt of report from the police submit the same before the Court concerned. On having seen the conduct of the Investigating Agency and District Prosecution Agency we are of the opinion that in absence
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of good working relations between both the agencies it is not possible to strictly adhere to the provisions of section 173, Cr.P.C. But on account of non-cooperation between both the agencies no one has suffered except the accused/petitioner who remained in detention without trial for a considerable period as it has been noted hereinabove. In this regard, the Court which had been granting judicial remand of the petitioner in terms of section 344, Cr.P.C. Would also equally responsible for the delay in commencement of trial case because if it had insisted hard upon police to comply with the provisions of section 173, Cr.P.C. Or to face consequence for keeping the accused in custody there was no reason that concerned S.H.O./Investigating Officer had not put up challan against the accused. It is a general practice that we do point out weaknesses in the system but don't bother to discharge the duty cast upon the functionaries seized with -the matter. We are sure that if the provisions of section .173, Cr.P.C. Are complied with in letter and spirit the delay in submission of challan and completion of trial in criminal cases can conveniently be controlled. 12. We may observe here that on completion of period of police remand under section 167, Cr.P.C. If final or interim report has not been submitted the Magistrate before whom accused has been produced for remand can insist upon the prosecution by passing order in writing to comply with the provisions of section 173(1), Cr.P.C. Or record reasons for remanding the accused to judicial custody for want of challan in terms of section 344, Cr.P.C. And simultaneously direct initiation of departmental proceedings against police officer responsible for submission of challan for not complying with mandatory provision of law and proving thereby himself/themselves to be inefficient police officers, the positive result shall start coming forward. Similarly in the instant case the Magistrate as well as Additional Sessions Judge, who had been granting police or judicial remand without insisting . Upon the S.H.O./Investigation Officer to submit challan had failed to discharge his/their duties. Surprisingly, the Additional Sessions Judge vide order dated 26-9-2000 declined bail to petitioner because challan against him was not put-up but when request for grant of bail was repeated he granted bail to the accused instead of initiating stern action against S.H.O./Investigation Officer as well as Superintendent of Police for not submitting the challan is also responsible for unjustified detention of the accused. We believe that not only the police and judicial officers who were associated with the instant case have violated the mandatory provisions of law but similar attitude is demonstrated by such-like officers throughout the country with the result that number of accused persons have been rotting in the jails without trial and their such detention would be in clear violation of provisions of Article 9 of the Constitution of Islamic Republic of Pakistan as well as the principles of administration of justice in criminal cases. 13. This aspect of the case can also be seen from another angle namely that detention of the accused persons in jails for indefinite period without trial is also causing innumerable problems including deteriorating law and order situation throughout the country because delay in submission of challan and commencement of trial provides as source of encouragement to the criminal-minded persons who know that despite their involvement in heinous offences no punishment could be awarded to them for a longer time for want ' of commencement of trial after submission of challan and in the meanwhile when the police and prosecution agencies after great deal of difficulty decide to commence the trial, the accused persons manage to won over the prosecution witnesses either on account of being terror or by extending them monetary help or in such cases the witnesses-feel insecured themselves if they depose against the criminals and if ultimately prosecution somehow succeed in enforcing attendance of the witnesses they half- heartedly depose against criminals resultantly the accused persons succeed in managing their escape from clutches of law on technical reasons and such illegalities and omissions had shaken confidence of the people over the institution responsible for conducting investigations as well as imparting justice to them. Although the problem has become complex in nature but instead of
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being disappointed from prevailing situation, devoted/sincere efforts should be made to strictly follow the provisions of law which definitely would restore the confidence of society so that stature of the institution and deteriorating, position of law and - order would also be controlled. 14. Before taking up other points involved in this case we consider it appropriate to note that delay in filing police report/challan is being caused for another reason namely that on the behest of the accused/complainant/State investigations in the cases are transferred from one police agency to another under section 158, Cr.P.C. On account of showing non-confidence by one or the other party in the. Investigating Agencies particularly in the Province of Punjab. Such device is followed invariably in every case and this reason independently also cause delay in submission of challan or commencement of trial of accused persons. We know that different investigating agencies cannot be debarred from carrying out repeated investigation of case as per direction of competent Authority with an object to find out truth and in such situation more than one police report/challan can be submitted before the trial Court in respect of one incident as it has been held in (i) Aftab Ahmad v. Hasan Arshad and 10 others (PLD 1987 SC 13), (ii) Mulazim Hussain v. S.H.O., Police Station Shorkot, District Jhang and 2 others (1995 PCr.LJ 440) and (iii) Muhammad Jamil v. S.H.O., Police Station Ahmadpur, District Sheikhupura (1997 MLD 2094). However, our emphasis is that notwithstanding the fact that before or after completion of investigation period prescribed under section 167, Cr.P.C. If it is not possible to submit final report, the Investigating Agency should strictly adhere to the provisions of section 173(1), Cr.P.C. And must submit interim challan through Public Prosecutor for trial and the accused arrested in the case should not be kept in custody for indefinite period without any legal justification. 15. Learned counsel for Hakim Mumtaz Ahmad contended that vide impugned judgment bail granted to the petitioner has been cancelled because during pendency of Criminal Miscellaneous No,6606-B of 2000 before the High Court petitioner has secured his release on bail by means of order, dated 11th November, 2000 passed by Mr. Muhammad Alamgir Khan, the same Additional Sessions Judge at Mandi Bahauddin who had already rejected his bail application on 26th September, 2000. According to him as petitioner was in custody, therefore, request for his release on bail by moving fresh bail application through Advocate who was engaged to provide him legal assistance and if said counsel failed to bring the fact to the notice of Additional Sessions Judge that similar request for grant of bail to petitioner was also pending before High Court, the petitioner cannot be penalized for such conduct of the Advocate due to which the petitioner had suffered badly because bail already granted to him has been cancelled; whereas on the other hand no action has been initiated against the said counsel. He further stated that in spite of the fact that on account of omission committed by the counsel or due to the reason that order of granting bail to petitioner on 11th November, 2000 has been passed, even then in suo motu exercise of jurisdiction it was obligatory upon learned Judges in the High ' Court to have examined the case of petitioner on merits because from the facts and circumstances of the prosecution case it would appear that the petitioner has been falsely involved in the case by the prosecution as initially a decoy customer was sent to the Dawakhana of petitioner to purchase opium from him and when he returned back with opium then immediately raid was conducted by the police on the shop of petitioner and allegedly recovered 142 grams of opium from the pocket of his shirt. He further contended that police had knowledge that raid has to be conducted on the shop of petitioner situated in a Bazaar, therefore, all the more it was necessary for the police to have complied with the provisions of section 103, Cr.P.C. To ensure independent recovery of opium from his possession. Learned counsel for petitioner contended that as the prosecution case has become doubtful on account of non-examination of decoy purchaser and recovery of tainted money from possession of petitioner at the time of making his personal search, therefore, in view of the judgment in the
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case of. Aamir v. The State (PLD 1972 SC 227) by extending benefit of such concession, bail be granted to the petitioner. 16. On the other hand Ch. Dil Muhammad Tarar, learned counsel for State argued that Additional Sessions Judge has granted bail to petitioner contrary to his earlier order, dated 26th September, 2000 wherein while rejecting plea of petitioner for bail it was observed that petitioner could not offer any licence which authorized him to keep opium in his possession and while declining bail it was further observed that question of grant of bail or otherwise will be looked into after receipt of report from Chemical Examiner…
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