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Petitioner: MUNEER VS Respondent: The STATE
Court Name: Sindh High Court Judge(s): Aziz-ur-Rehman Title: MUNEER vs The STATE Case No.: Criminal Bail Application No,S-400 of 2012 Date of Judgment:2013-10-23 Reported As: 2014 MLD 723 Result: Bail allowed
Judgment ORDER ' AZIZ-UR-REHMAN, J.---By means of this bail application under section 51 of C.N.S. Act, 1997 [Act XXV of 1997] read with section 497, Cr.P.C, the applicant/accused Muneer son of Mir Khan seeks his release on bail in Crime No,02 of 2012 under section 9(c) of Control of Narcotics Substance Act, 1997, [Act XXV of 1997]. 2. Fact of the prosecution case as setup in the F.I.R. No,02/12 reads as follows:-- "It is to complain on behalf of the State that today, 1 along with staff each HC/1004 Moula Bux, HC- 990 Habibullah Ali Jono, PC-1673 Manzoor Hussain Channa and driver PC-95 Ali Gul, in police uniform with official arms and ammunition left police station in official Vehicle No, SP-6673, vide daily diary entry No,09 dated 1-1-2012 at 1430 hours for patrolling in the area. After patrolling at various places, when reached at Kazi Ahmed diversion, where received spy information that one person is selling charas and alcohol at Asif Colony. We along with staff left for pointed place by the spy and at 1545 hours reached at common street, Asif colony, Kazi Ahmed and saw that one person was sitting in the street and a plastic bag was lying in front of him, who on seeing our police vehicle, started running away with plastic bag. We stopped the vehicle, alighted from vehicle along with staff encircled with strategy and apprehended him with plastic bag, where arranged for private mushirs but due to non-availability of private mushirs, HC-1004 Moula Bux and PC-1171 Munawar All were made mushirs and inquired from his name etc. From apprehended person, who disclosed his name Muneer S/o Mir Khan by caste Khaskheli r/o Asif Colony, Kazi Ahmed. His personal search was conducted and from his personal search nothing was recovered. Shopping bag was taken into police custody, checked and found red colour five pints of alcohol Wat-1 and white colour 8 pints of alcohol London Dry Gin (Whisky) and three big packets of
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charas. On weighing charas on spot, found each packet of one K.G. Total three KGs. / 200 grams from each packet was separated for chemical examination and sealed as sample, while remaining charas sealed separately. From recovered alcohol, one pint of red colour Wat-I and one pint of white colour London Dry. Gin were sealed separately for chemical examination, while remaining pints of alcohol/whisky were sealed separately in plastic bag. From him, inquired about chqras and alcohol he disclosed that it is mine and I use to sell. As Muneer son of Mir Khan Khaskheli, by keeping illegal charas and alcohol in his custody for selling, committed offence under section 9-C, CNS and 3/4 Prohibition (Enforcement of Hudood) Order, hence he was arrested with preparing of mushirnama. Then arrested accused Muneer Khkaskheli and charas and alcohol recovered from him brought at police station in custody and on behalf of State case under section 9-C CNS and 3/4 Prohibition (Enforcement of Hudood) Order is registered." 3. The case after usual investigation of police has been challaned and the accused/applicant thus is facing the trial in Court of law for his alleged guilt. 4. The applicant/accused before approaching this court through the instant Bail Application No,S- 400 of 2012, earlier had moved Bail Application No, 121 of 2012 under section 497, Cr.P.C. Bearing No,121 of 2012 [Muneer son of Mir Khan v. The State] for grant of post arrest bail in the Court of Sessions Judge/Special Judge, C.N.S., Shaheed Benazirabad. The same however, was dismissed vide order dated 17-2-2012. 5. Mr. Ahsan Gul Dahri, learned counsel for the applicant/accused vehemently argued that the applicant/accused, in fact is a political worker and has thus become victim of political victimization. Per learned counsel the case property in actual fact has been foisted upon the applicant/accused by the police officials. 6. Mr. Ahsan Gul Dahri learned counsel for the accused forcefully contended that in fact nothing has been recovered from the possession of the applicant/accused. Per learned counsel the applicant is absolutely innocent and has been falsely implicated in the case in hand, of course, with ulterior motives and mala fide intention. 7. Mr. Ahsan Gul Dahri the learned counsel for the applicant next contended that SIP Eiden Khan Siyal, S.H.O. Police Station Kazi Ahmed besides inscriber of F.I.R. Is also investigator of the crime. Not only this both the 'mushirs' are subordinate of the complainant. False implication of the present applicant/accused under circumstances of the case, thus cannot be ruled out. Mr. Ahsan Gul Dahri, learned counsel for the applicant/accused further submitted that out of the alleged three packets of charas only 600 grams [200 grams from each packet] was sent for chemical examination and that too with a delay of five days. The remaining recovered property was not sent for chemical examination as such the quality and/or quantity of the alleged charas cannot be ascertained truly. 8. Per learned counsel, in view of such illegalities, it cannot be ascertained and /or confirmed that the remaining quantity was also charas. The case against the accused even if, proved in regular trial, it would be for 600 grams of charas only, which in any event does not fall within the ambit of section 9-C of C.N.S. Act, 1997 [Act XXV of 1997]. 9. Mr. Ahsan Gul Dahri, learned counsel for the applicant/accused while, elaborating his arguments further urged that the complainant viz SIP Eidan Khan Siyal S.H.O. Police Station, Kazi. Ahmed has allegedly got information at Kazi Ahmed diversion about the selling of the 'charas' and 'alcohol' and that too in a common public street Asif Colony at 1545 hours but no cash/exchange whatsoever was recovered in personal search of the applicant/accused. No recovery of any cash/exchange, indeed, is a prima facie proof of innocence of the applicant/accused. 10. The story narrated and setup in the F.I.R. Besides, extremely doubtful is also un-believable. The allegations levelled in the F.I.R. No,02 of 2012 against the applicant/accused are ill motivated, shaky and baseless thus needs detailed probe. Per learned counsel, no private person was found available at the place of incident [i,e, Asif Colony], though it was admittedly a common street. The
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spy information as alleged, was also available with the police raiding party, but notwithstanding such information, no independent person of the local area was called upon to act as 'mushir' or 'witness' of the arrest and alleged recovery. Per learned counsel, it is a clear violation of the provisions of section 103, Cr.P.C. Be that as it may inter act, such violation renders the case of the applicant doubtful and of further inquiry. Mr. Ahsan Gul.Dahri, also contended that the applicant/accused is not a habitual offender, as before the case in hand, there is not a single complaint against him vis-a-vis selling of 'charas' and/or 'alcohol'. 11. Bail, per learned counsel, is not to be withheld as a punishment as the ultimate conviction and incarceration of a guilty person, of course, can repair the wrong if, caused by mistaken relief of bail. 12. Per learned counsel, the applicant/accused under circumstances of the case is, indeed, entitled for grant of bail. The case of the applicant/accused besides 'doubtful' is a 'case of further inquiry'. The applicant/accused, per Mr. Dahri, is neither a criminal nor otherwise, has any previous record of conviction. The accused/applicant nonetheless is entitled for the benefit of doubt. 13. Since, last 22 months the applicant/accused is behind the bar for no fault and/or on account of any conviction. If, the accused is kept behind the bars onward as well then, surely besides, humiliation he will suffer continuous torture. Not only this he will also lose his 'liberty' and 'reputation'. The applicant/accused, is in jail for a period of more than 22 months and admittedly he is no more required for investigation or otherwise. Mr. Ahsan Gul Dahri, learned counsel for the applicant/ accused, lastly contended that the normal and standard sentence for the alleged Contraband Narcotics Substances [03 KG. Charas] allegedly recovered is R.I. For five years, six months and fine of Rs,25,000. In default, the accused to suffer S.I. For five months and fifteen days more. The charges against the accused thus do not fall much less within the ambit of prohibitory clause of section 497 Cr.P.C. 14. Learned counsel for the applicant in support of his contention placed reliance on the following cases:-- (a) DILDAR ALI, P.C. v. THE STATE [2009 MLD 133]. (b) TARIQ BASHIR and 5 OTHERS v. THE STATE [PLD 1995 SC-34] (c) GHULAM MURTAZA and OTHERS v. THE STATE [PLD 2009 Lahore 362]. (d) NAZEER AHMED v. THE STATE [PLD 2009 Karachi 191]. (e) STATE THROUGH ADVOCATE GENERAL, SINDH BASHIR AND OTHERS [PLD 1997 SC 408]. (0 AGHA QAIS v. THE STATE [2009 PCr.LJ (Lahore) 1334]. (g) GHULAM.ABBAS v. THE STATE [2011 YLR 1723]. (h) BAHAWAL ALIAS NAANG v. THE STATE [2011.PCr.LJ 1200]. (i) NASIR KHAN AFRIDI v. THE STATE [2011 YLR 2316]. (j) KHUDA BUX v. THE. STATE [2010 SCMR 1160]. (k) MUHAMMAD FAIZ v. THE STATE [2008 YLR 1214]. (1) IMDAD ALI v. THE STATE [2001 YLR 1848]. 15. Conversely, Mr. Shahid Ahmed Shaikh, Asstt. P.G. Emphatically opposed the grant of bail. Learned A.P.G. Contended that huge quantity of 'charas' [i,e, 3 K.G.] has been recovered from possession of the applicant/accused. As such the accused is very much connected with the offence. Per learned A.P.G., the case of the present accused falls within the ambit of section 51 of the Control of the Narcotic Substances Act, 1997 [Act XXV of 1997]. Learned A.P.-G. Further contended that only recovery effected is to be considered at the time of grant of bail and merits of the case muchless in deep, need not to be considered and/or examined. He further contended that direct role in the F.I.R. Has been assigned to the accused. The accused according to the learned A.P.G. Has rightly been refused the concession of bail by trial court. Learned A.P.G. Next contended, that applicant/accused is not entitled for concession of the bail in view of recovery of huge quantity of charas. Any sort of lapses inter alia in investigation were forcefully denied by learned A.P.G. Lastly, learned A.P.G. Prayed for dismissal of the Bail Application.
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16. Heard learned counsel for the parties and also gone through the available record. 17. In the present case, SIP Eidan Khan Siyal, S.H.O., Police Station.Kazi Ahmed, besides complainant is also inscriber of the F.I.R. The said officer himself investigated the case against the applicant/ accused and allegedly collected evidence. From the complainant of an F.I.R., indeed, 'impartial investigation' and/or 'preservation of evidence' cannot be expected for the obvious reason that in such eventuality it will go against his own case set-up. 18. A complainant of an F.I.R. [as the case in hand is] cannot suitably discharge his duties as an independent and/or fair investigating officer. For this obvious reason, Superior Courts have never appreciated or approved such practice. Under law, an officer of police or of any other force is always obliged to do justice and conduct. Investigation beyond any doubt, of course, fairly and independently. Otherwise, the investigation made in contravention of para-3 of the Rule 25.2 [Chapter XXV] of Police Rules, 1934 would render the investigation very much doubtful. It is the duty of a police officer who is investigating the crime to discover the truth and actual facts. The investigating officer, it is needless to say, is also an important witness of defence. For achieving such object, the investigating officer in all circumstances shall not be biased. If complainant of crime is also investigating officer then in such eventuality the factor of bias- cannot be ruled out. Regarding this aspect of the matter reference can be made to the case of THE STATE v. BASH1R THROUGH ADVOCATE GENERAL AND OTHERS [PLD 1997 SC 108]. The relevant observations made therein read as follows:-- "Then reference may be made to the Police Rules, 1934. Chapter XXV of the Police Rules relates to Investigation. Para. 3 of the Rule 25.2 in. Chapter XXV reads as under:- "3. It is the duty of an Investigating Officer to find out the truth of the matter under investigation. His object shall be to discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person." ' It could hardly be expected that a police officer, who is heading a raiding party and is a witness, also becomes the complainant and lodges an F.I.R. Against the accused, and then becoming an Investigating. Officer of the same case, will comply with the aforesaid Police Rule. In the circumstances, the practice of the seizing officer or the head of a police party who is also a witness to the crime becoming or being nominated as an Investigating Officer of the same case should be avoided and if any other competent officer is available in the police station, he may be nominated as the Investigating Officer rather than the head of the Police Party. As observed, Investigating Officer is an important witness for the defence also and in, case the head of the police party also becomes the Investigating Officer he may not be able to discharge his duties as required of him under the Police Rules." [Underlining is mine]. 19. Likewise, in the case of Agha Qais v. The State [2009 PCr.LJ 1334], the Division Bench of Lahore High Court, observed as under:-- "9. Under the law, complainant and accused are two opponent parties. In other words, they are two contesting parties. Role of an Investigating Officer is of a neutral authority whose object is to unearth the truth. The Investigating Officer cannot be a part or a member of a party in a case which he is investigating. In this regard, guidance may be sought from Chapter 25 of Investigation from Police Rules, 1934. Rule 25.2(3) reads as under:- "It is the duty of an Investigating Officer to find out the truth of the matter under investigation. His object shall be to discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person." ' The language of Rule 25.2 above noted clearly requires of an Investigating Officer not to commit himself prematurely to any view of the facts for or against any person. This cannot be expected from an Investigating Officer who himself is a party. As a matter of fact, concept of honest
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investigation is based on nonpartisanship and neutrality. The reason and spirit of separating investigation wing from the operation wing of police also emanates from the same fact which reflects in Article 18 of the Police Order, 2002, therefore, we feel that element of honest, transparent and fair investigation lacks in the instant case. The same point has been discussed by the learned Sindh High Court reported in Nazir Ahmad v. The State PLD 2009 Kara 191. The honourable Supreme Court has analyzed the above point from another angle also. According to the honourable Supreme Court, Investigating Officer is an important witness for the defence also and in case he acts as a complainant and raiding officer, the defence is deprived of his very precious right at the same time and is forced not to depend upon the same. The Federal Shariat Court also observed that such an investigation is biased investigation. (Ashiq alias Kaloo v. State 1989 PCr.LJ 601). In State v. Bashir and others PLD 1997 SC 408, the honourable Supreme Court observed that "as observed above, Investigating Officer is as important witness for the defence also and in case' the head of the police party also becomes the Investigating Officer, he may not be able to discharge his duties as required of him under the Police Rules". " [Underlining is mine]. 20. As for as the second contention of Mr. Ahsan Gul Dahri, learned counsel for the applicant vis-a- vis non-following of mandatory requirements of section 103 Cr.P.C. Is concerned, it is worth to note, that time anti again, it has been observed by Superior Courts that before making a search, the police officer or other officer making such search, to call upon two or more inhabitance of the locality to attend and witness the search. In the instant case the alleged incident has taken place at 1545 hours on 1-1-2012 in a common street of 'Asif Colony'. But no independent witnesses from the locality were made mushirs of alleged recovery. This, no doubt, is a clear violation of the provisions of section 103 Cr.P.C. [Act V of 1898]. 21. The provisions of section 25 of the C.N.S. Act 1997 [Act XXV 1997], indeed, excludes the applicability of section 103 Cr.P.C. [Act V of 1898] such exclusion, however, does not authorize the investigating officer of police or such other officer absolutely to exclude independent witnesses in all circumstances. Reliance is placed on the case of Nazeer Ahmed v. The State [PLD 2009 Karachi 191] wherein the Hon'ble Division Bench of this Court observed as follows:-- 6. Under section 25 of the C.N.S. Act, applicability of section 103 of the Code of Criminal Procedure 1898 (Cr. P. C.) has been excluded in making searches and arrests in respect of narcotics. Section 103 Cr.P.C. Enjoins the officer or other person, who wants to make search of a place, to call upon, before making the search, two or more respectable inhabitants of the locality to attend and witness the search. The purpose, according to the unanimous opinion of the superior Courts, is to prevent chicaneries of police. 7. While keeping the provisions of section 103, Cr.P.C., which are undoubtedly salutary, intact for searches in respect of all other things, the legislature considered it expedient to do away . With the requirement of calling upon the respectable persons to attend and witness search in respect of narcotics. Thus, the provisions of section 25 of the C.N.S. Act are a departure from the general law of the land and appear to be out-come of an expediency so as to give a free hand to police and other forces while dealing with cases involving narcotics. 8. By excluding applicability of section 103 of Cr. P. C. In narcotic cases, the legislature has not conferred any additional or extra sanctity upon the officers of police or such other forces. It has not made them more reliable. Indeed, as it has been rightly observed by a Division Bench of this Court, in the case of Ali Hassan v. The State, reported in PLD 2001 Karachi 369, 'man cannot be made moral through legislation'. The effect of section 25 of the C.N.S Act will be that evidence of a police officer regarding recovery of a narcotic substances cannot be discarded only on the ground of non-compliance of section 103, Cr. P. C. In another case, re: Pir Bux v. The State, reported in 2007 MLD 1696 (Karachi), it was observed that notwithstanding the non-applicability of section 103 Cr.P.C. In the cases of narcotics, the officers making searches, recoveries and arrests are
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required to associate private persons, more particularly in those cases in which their presence is admitted so as to lend credence to such actions and to restore public confidence." [Underlining is mine] 22. Similarly the observations made by my lord Mr. Justice Salem Akhtar of Hon'ble Supreme Court of Pakistan [as he then was] and reproduced at page 422 in the case of State through Advocate General Sindh v. Bashir and others [PLD 1997 SC 408] read as follows:-- "11. It has been contended that evidence of police officer should be accepted like any other prosecution witness. A police officer produced as a witness for the prosecution can be relied upon like other prosecution witnesses but as lie is an investigating officer or attached with the investigation staff, the Courts as a matter of prudence and safe administration of justice, scrutinize the evidence of such witnesses with care and caution. Where circumstances permit, the evidence may be accepted to prove arrest or recovery but in order to make it credible and authentic the prosecution must explain the circumstances for noncompliance with the provisions of section 103. Section 103 read with section 164, Cr.P.C. Lays down the mode for recovery and search but as in certain circumstances a deviation may be made, it would be proper to explain the reasons for such deviation. So far the acceptability of the evidence of the police officer is concerned, the general principle is that if there is no animus or mala fides, the investigation has been straight and honest and no substantial defect or infirmity has been pointed out in the evidence or brought through cross-examination, the evidence of such a witness though a policeman, may be accepted. However, in cases of, recovery, this principle is accepted subject to furnishing an explanation by the prosecution for non-compliance with section 103. Para. 15 quoted by my learned brother reads as follows: "15. From the aforesaid judgments, it seems clear that being a policeman or an Investigating Officer, is no bar to the acceptance of his testimony. His evidence should be accepted like other prosecution witnesses and if it fulfills all such conditions which are necessary for accepting and believing a witness, it cannot be. Discarded. But where such witness proves recovery, normal limitations and restrictions have to be observed" ' Both the paras. Are to be read together and it has never been observed that where search is made by the police officer without resorting to the provisions of section 103, Cr.P.C., the policeman or the investigating officer would be a competent witness. No doubt their evidence can be assessed as an ordinary witness, but where it relates to search and seizure, it will have to be considered whether provisions of section 103, Cr. P. C. Have been observed. All restrictions and conditions which are preconditions to the admissibility of such police personnel's evidence have been spelt out in para.. 11 quoted above." [Underlining is. Mine]. 23. By not fulfilling the mandatory requirements of section 103 Cr.P.C. In the case in hand, the case of the applicant/accused besides doubtful has become a case of further inquiry. Besides, the applicant/ accused has no past criminal history. Neither he was booked, in past, for alleged crime nor convicted' as such. The case of the applicant/accused, under circumstances, is a borderline case, benefit of doubt, therefore, must go to him even at the stage of bail. 24. Significantly, per version of the complainant in the F.I.R. The place of incident is a colony and the applicant/accused was allegedly selling 'charas' and 'alcohol' in common street but no cash and/or exchange whatsoever was recovered from the applicant/accused upon personal search. Besides, spy Information was available with the raiding police party but not a single independent person of locality came forward to act as a 'mushir' or 'witness' of the alleged incident and/or recovery. All this, indeed, makes the case of the prosecution besides 'doubtful', 'false' and of 'further inquiry'. Reliance in this regard can be placed on the case of Ghulam Abbas v. The State (2011 YLR 1723]. The relevant extract therefrom reads as follows:--
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"It is argued by Mr. Nisar Ahmed G. Abro, learned counsel for the applicant, that despite receiving the alleged spy information, the complainant party failed to associate any private witness to attest the alleged recovery of charas and no purchaser of the Charas in question has been cited in the F.I.R. Though the applicant was allegedly selling the charas, therefore, the case of prosecution needs further enquiry. ' On the other hand, Mr. Mus 'ab Baloeegh Dhamrah, learned State Counsel, opposed the above bail application. ' I have considered the above submissions and also perused the relevant papers. ' In addition to the above contentions raised by learned counsel for the applicant, it appears that the F.I.R. Does not show as to how much pieces of the Charas were secured from applicant and how much pieces, out of recovered Charas, were sent for chemical examination. Moreover, the total quantity of alleged Charas being 1100 grams, marginally exceeds to the borderline, falling between the offence under sections 9(b) and 9(c) of C.N.S. Act, 1997." ' In the circumstances, the applicant, who is in jail since after his arrest, is granted bail on furnishing a solvent surety in the sum of Rs,100,000 and PR bond in the like amount to the satisfaction of the learned trial court." 25. Likewise, in the case of Hakim Mumtaz Ahmed v. The State (PLD…
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