P L D 1988 Karachi 485 (PLP)

The facts of the. 'case in brief are that on 26‑.1.‑1988 at about 3.00 a. m . complainant Syed Abid Hussain, Inspector Incharge, Police Station. Chakiwara , ' on receipt of spy information, stopped Car No. KCP‑6096 in which two persons were sitting. The, present applicant Malik Muhammad. Salim was sitting on the driver's seat, while co‑accused Muhammad Iqbal ,vas sitting on the rear seat. The complainant presence of Mashir S.I.P. Muhammad Anwar and A.3.I. Moor .Kh; secured from the possession of applicant on' the driver's seat packets of "Heroin" weighing 40 Kgs. aria fine slabs of 'Chars weighing 5 Kgs, and also recovered some arms and ammunition. He also recovered one pistol of 30 bore and! one rifle of .22 bore with some live cartridges of both the arms. From the possession of co‑accused Muhammad lqbal from the rear seat, he recovered 10 packets of 'Heroin' weighing 10 Kgs. and 5 slabs of 'Charas' weighing 5 Kgs. and also recovered some arms and ammunitions. He also recovered some cash, prize bonds etc. from the accused persons. He sealed the 'Heroin' and 'Charas' on the spot and half (1/2) kg. of 'Heroin' and half (1/2) kg. of 'Charas' were separately sealed as sample for chemical analysis. Such F.I.R. was registered on .26‑1‑1988 at 6.30, p.m.

2. Co‑accused Muhammad Iqbal has been released on bail by the learned trial Court, while the present applicant has moved this bail application.

3. Mr. Rustum J.E. Kaikobad learned counsel for the applicant has submitted that the applicant was arrested from his house and the contraband articles have been foisted upon him. In support he has relied upon the copies of applications, statements and' affidavits of some Mohalla people: He further stated at the bar, that the Inspector General of Police Sind is making enquiry into the. allegations of false implication of the present applicant.

4. Mr. Abdul Ghafoor Mangi learned A.A.‑G. appearing for the State submitted, that these applications, statements and Affidavits cannot be considered as. evidence in the case so as. to raise any ‑reasonable ground that the applicant has not committed the alleged, offence:

5. Secondly it is submitted by Mr. Rustum J.E. Kaikobad that both the Mashirs of the alleged recovery are Police Officers which is in violation of section 103, Cr.P.C. and as such no reliance can be placed on such recoveries. He has relied upon the case of Muhammad Ismail v. The State P L D 1979 Kar. 31 wherein it has been held that "provisions of section 103, Cr.P.C. are designed to. create safeguard against the possible chicanery and concoction. on the part of Investigating Officer and violation of such provisions cannot be lightly countenanced." Reference has been made in that case to the case of Muhammad Khan v. Dost Muhammad P l~ D 1975 S C 607 wherein their Lordships have held that "requirement of section 103 is not absolute in the sense, that failure to comply :with it will make the search illegal. The Courts will ordinarily insist on a strict compliance with this requirement and view its non‑compliance with suspicion, unless an explanation is forthcoming for failure to secure the presence of respectable witnesses".

6. Mr. Abdul Ghafoor Mangi learned A.A.G. has submitted, that in view of these observations of their Lordships of Supreme Court no adverse presumption can be drawn unless the Investigating officer is given a chance, when he is examined to explain the omission try comply with the provisions of section 103, Cr.P.C. He further submitted that looking to the odd hours when the alleged recoveries were made, the Investigating Officer was obviously unable to secure the presence of independent Mashirs at such time,

7. Thirdly it is submitted by Mr. Rustum J.E. Kaikobad learned counsel for the applicant, that the Mashirnama does not show as to from what packages the samples were taken and whether they were drawn from the contraband secured from the possession of the present applicant or they were secured from the co‑accused, who has already been released on bail. It is submitted that as the. entire quantity was not sent to the Chemical Analyser for report therefore the report of Chemical Analyser cannot prove. that the applicant was in possession of 40 Kgs. of 'Heroin' or 10 Kgs. of 'Charas'.

8. Mr. Abdul Ghafoor Mangi learned A.A.‑G. for the State submitted that the Chemical Analyser's report shows that separate samples were sent to the Chemical Analyser which showed that they have been drawn from the contraband material secured from each of the accused separately. He further submitted that even if it is held that the chemical analysis of the samples of the 'Heroin' and 'Charas' may not prove that the entire quantity was of 'Heroin' or 'Charas', still the quantity of these samples is more than 10 grams of 'Heroin' and as such the offence would fall under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979 (hereinafter called the Order).

9. Lastly it is submitted that the alleged contraband articles are said to have been recovered from a Car viz. a vehicle which is not a public place. He has referred to Article 2(1) of the Order which defines 'public place' to mean "a street, road, thoroughfare, park, garden car other place to which the public have free access and includes hotel, restaurant, motel, mess, and club, but does not include the residential room of a hotel icy the occupation of some person." He has also referred to Article 2(j) of the Order which defines 'place' "to include a house, shed, enclosure, building, shop, tent, vehicle, vessel and aircraft".

10. It is submitted by Mr. Rustum J.E.Kaikobad learned counsel for the applicant, that the vehicle from which the alleged recovery was made was a place, but not a public place, in view of the above definition, and therefore., the offence, if any, would not be cognizable under Article 16(1)(b) of the Order which reads as under: "(1) The following offences shall be cognizable, namely:‑‑ (a) .. (b) An offence punishable under Article 4, Article 8 or Article 11, if committed at a public place." ‑.It is further submitted, that the offence being not cognizable, the Police could not have investigated the offence without order of the Magistrate under section 155(2), Cr.P.C. which provides as under:‑‑ "S.155(2). No Police Officer shall investigate a non‑cognizable case without the order of a Magistrate of the first or second class having .power to try such case, or send the same for trial to the Court of Sessions." 411: Mr. Rustum J.E.Kaikobad learned counsel for the applicant has relied upon the case of Muhammad Rashid v: The State P L D 1964 (W.P.) Kar.. 381 and the case of Hussain Bux v. The State PLD 1963 (W.P.) Lah.

46. In both the cases the proceedings in the Court were quashed when a non‑cognizable offence was investigated by the Police without compliance of Section 155(2), Cr.P.C. and the cases were sent to the Court.

12. Mr. Rustum J.E. Kaikobad learned counsel for the applicant has also relied upon the case of Muhammad Yameen v: The State 1987 P Cr. L J 2239 wherein a Division Bench of Federal Shariat Court held that Vehicle was not a public place and the offence committed therein was not cognizable. The conviction in the case was set aside holding that taking cognizance of a non‑cognizable offence and 'sending up a case for trial by the Police vitiated the trial on account of material defect in the investigation. Reliance is also placed on the cases of Hayat v. The State 1985 P Cr. L J 1353, Rehmatuallah v. The State 1987 P Cr. L J 1409 and Hussain Javeri v. The State 1983 P Cr. L J

102. In all these cases it was held that recovery of contraband articles from house was not recovery from the public place and hence the offence was not cognizable. In the case of Hayat v. The State bail was granted to the accused, while in other two cases proceedings in the Court were quashed. The last mentioned case of Hussain Javeri v. The State was referred to and relied upon by the Federal Shariat Court in the aforesaid case of Muhammad Yameen. The. first mentioned two cases of Rehmatullah and Hayat were referred to and approved by their Lordships of Hon'ble Supreme Court in the case Mst. Zar Bano v. The State. In unreported judgment in the case of Mst. Zar Bano (Cr.p _ No.60‑K of 1987) their Lordships held "as the petitioner was found in possession of the contraband articles in her house which cannot be said to be a public place, offence, if any, committed by. the petitioner is bailable by virtue of Article 16 of the Prohibition Order; 1979." Their Lordships, therefore, granted bail to the applicant. 13, Mr. Abdul Ghafoor Mangi learned A.A.‑G. appearing for the State has relied upon the cases of The State v. Abdul Majeed and several others reported in 1984 S C M it 392, decided by Shariat Bench of the Hon'ble Supreme Court. In this case one of the points amongst others for consideration was "where the accused is found in a state of drunkenness at a .public place though the actual drinking is not at a public place, whether the offence is non‑cognizable." The other point for consideration was "in case the offence be non cognizable, whether the investigation and the submission of challan by the Police in breach of section 155, Cr.P.C. is fatal to the case".

14. It may be pointed that in this case the accused was not found drinking at a public place but was found in a state of drunkenness at public place. Their Lordships held that in such a case the accused can be arrested by the Police under Article 12(1) of the Order, if he refuses to accompany them on having been examined by medical practitioner or certified to him to nave taken intoxicant, and it was further held "thus there was no conflict between the provisions of Articles 16 and 12(l) : Their Lordships have not given any clear finding, on the other point as in the case concerned, the case had 'been registered and challan submitted under Articles 3 and 5 of the Order, of which the offence under Article 3 :vas cognizable. It was held that the fact that the charge was later framed by the Magistrate only under Article 4 of the Order, would not, therefore, ordinarily affect the legality of investigation and the submission of report under section 173, Cr.P.C.

15. The instant case is obviously distinguishable from the above reported case. In the instant case the applicant has been arrested as]p well as recovery has been made from the vehicle which has been held spot to be a public place. The challan has also been submitted for they offence punishable under Article 4 of the Order, which as pointed) above, is cognizable, only if committed at a public place.

16. As no evidence has been recorded at this stage I am not impressed by the first three submissions made by Mr. Rustum J. E. Kaikobad and I am inclined to agree with the submissions of Cdr. Abdul Ghafoor Mangi learned A.A.‑G. However, the fourth submission of Mr. Rustum J.E. Kaikobad has great force.

17. The law has clearly been laid down by their Lordships of, Hon'ble Supreme Court in the aforesaid unreported judgment in the case of Mst. Zar Bano that when the offence is not cognizable the accused in such cases are entitled to gail This law laid down by the Hon'ble Supreme Court is binding upon this Court. As such I order the applicant iv be released on bail on furnishing surety in the scorn of Rs,5,00,00G (Rupees five lass) and P.R, bond in the like amount to the satisfaction trial Court... MYH/M-531/K Bail granted.