1989 PLP 4777 (MLD)

On receipt of secret information that a person was selling 'Heroin' near Sabzi Mandi on Aurangzeb Road in the area of Police Station Delhi Gate of Multan, S.I. Sarfraz Hussain of the Special Cell, alongwith a raid party consisting of some police officials, reached the area, spotted the suspected person and sent a fake customer who approached this suspect and was sold one gram of 'Heroin' for Rs.40. This suspect, who was later identified as Ashfaq Ahmed alias Shakoo, was arrested on the spot. His personal search led to the recovery of another ten grams of 'Heroin' besides of course the recovery of the aforesaid amount of Rs.40 which was received by him as the price of one gram of 'Heroin'

2. Consequently, a case bearing F.I.R. No. 44 dated 1‑3‑1988 was registered at P.S. Delhi Gate on the complaint of Sarfraz Hussain, S.I. afore‑mentioned for the alleged commission of offences punishable under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order 4 of 1979 as also under section 14 (2) of the Dangerous Drugs Act of 1930.

3. Having remained in custody since 1‑3‑1988, Ashfaq petitioner moved the learned Sessions Court for his release on bail on more than one occasions but without any success. He approached this Court for the purpose through Crl. Misc. No.1229/B‑88 but elected to withdraw his petition on 8‑11‑1988. He went back to the learned Sessions Court, this time on the ground that despite a lapse of more than eleven months the challan had still not reached the trial Court. The learned Sessions Court, however, once again rejected his prayer for being admitted to bail vide its order dated 10‑1‑1989.

4. Hence this petition.

5. It is shocking that in a case as this where the accused was known and stood arrested at the spot; where the objectionable material stood recovered at the time of arrest of the accused; where the witnesses of the alleged commission of the offence in question and of the recovery of the material in question were mostly the police officials and where the entire investigation stood almost completed at the spot except chemical analysis of the alleged 'Heroin', the Investigating Agency still required more than one year to complete its investigation and to submit the challan before the trial Court. About the chemical analysis also, I am informed that a laboratory stands established at Multan and the samples no longer need to be sent to Lahore for their analysis, thus eliminating any possible delays on this score also. To say the (cast, this apathy on the part of the concerned police agency is unconscionable. G. This is not the only case demonstrating extreme inefficiency and lethargy on the part of the investigating agency. I have come across other cases also depicting the same sad, unfortunate and apathetic story.

7. Shocked by this stale of affairs, I directed the learned District Magistrate as also the learned Sessions Judge of Multan to submit their respective reports about the cases relating to narcotics and drugs which were pending trial before various Courts under their respective control. Having seen the speed and the interest with which these matters were handled at the investigating stage, the purpose of obtaining these reports was to ascertain the pace at which these cases progressed during the trial.

8. The facts revealed through these reports, which have since been received and examined, are no less alarming than the situation at the pre‑trial stage.

9. One typical example is F.I.R. No.91/88 of Police Station Qutabpur date 30‑3‑1988. The accused were arrested selling 'Heroin' at the spot. It took the challan six months to reach the learned Magistrate who took cognizance of the case on 8‑9‑1988. As per report of the learned trial Magistrate, the trial was fixed for al least nineteen dates of hearing between September, 1988 and March, 1980 and not a single witness had been examined during these six months. Out of these nineteen dates of hearing, at least on fifteen occasions, the accused who was in judicial lock‑up, was not brought to the Court from the jail and the trial had to be adjourned each time on that account.

10. The other main reason for inordinate delays in conclusion of trials which is strikingly apparent from the aforementioned reports is the non‑appearance of prosecution witnesses before the trial Courts. A perusal of these reports paints a pitiable picture of the treatment being meted out to these cases. It is regrettable that cases registered in the years 1987, 1985 and even in the year 1983 are still being adjourned on account of absence of prosecution witnesses and in some of these cases not a single witness has been produced by the prosecution so far. Needless to repeat that in such‑like cases, the prosecution witnesses are none other than just the police officials.

11. These reports also reveal that in the District of Multan, 3402 cases are presently pending trial before the Courts of learned Magistrates and 184 cases are awaiting adjudication in the Courts of the learned Sessions and Additional Sessions Judges. This of course, does not include the cases which are still under investigation and which have not yet reached the trial Courts.

12. The enormous pendency of this category of cases is definite pointer towards the proportions being attained by the drug menace in our society. But what really wish to highlight more is that in almost every case the quantity of narcotics recovered from the accused persons is no more than a few grams. Despite long periods of time consumed in its completion, no investigation appears ever to reach or even to reveal the local source i.e. the local 'Big Fish' who are spreading this poison in every street of the city. The only ones always caught are those petty street pedlars. Whether it is a case of just a deficient or` negligent investigation or of a planned and deliberate design to screen the real 'Big Fish', should be a food for thought for the law enforcing agencies and the ones in command thereof.

13. Reverting to the disturbing delays in the finalisation of investigations and the completion of trials, it may also be observed that the performance of Courts is not satisfactory either.

14. The Courts of Law enjoy a pivotal position in the administration of criminal justice. At every step in the Criminal Procedure one would find a Court placed as a guard not only to prevent encroachments upon the rights of the individuals, but also to check the misfeasance and the mal‑feasance on the part of the police authorities and the investigating officers. But, it unfortunately appears that the Courts of Law have relegated themselves to the position of mere silent spectators and have left themselves to the mercy of the police, the investigating, the prosecuting and the process‑serving agencies.

15. It is true that the Courts normally exercise restraint in interfering with the investigations being conducted by the police, but this does mean that the investigating officers have unbridled powers to do just what they want during the course of investigation and to take as long as they desire in completing the same. A perusal of section 61 and section 167 of the Code of Criminal Procedure would reveal that the law desires the investigation to be completed within 24 hours of the arrest of the accused and the maximum time allowed for the purpose is another 14 days whereafter the law expects the trial to commence. Beyond this period of fifteen days, it has to be a rare case of real good cause which could persuade the Court to postpone the commencement of the trial in exercise of its powers under section 344, Cr.P.C. It has been repeatedly laid down by the Superior Courts that detention of accused persons beyond the initial period of fifteen days, in the absence of the submission of a complete or incomplete challans and in the absence of very extra‑ordinary reasons, is illegal. A strict adherence to these provisions and demanding strict compliance thereof by the Courts, appears to be the only answer to control the inordinate delays in the completion of investigations and the submission of challans which delays appear to have become the order of the day instead of being a rare exception.

16. Let it be reiterated for the guidance of the learned Magistrates and the learned trial Courts that they have to insist on submission of challans within fifteen days of the arrest of the accused persons and in the absence thereof the Court must refuse to authorise further detention of the accused persons as also the postponement of trials unless a really valid and satisfactory cause is shown to deviate from this principle. I may add that in the situation prevalent today it is only a ruthless observance of the relevant provisions of law which can put the things back on rails. The pre‑occupation of police personnel in other engagements or the insufficient number of investigating officers should not be treated, any longer, as a valid ground for the purposes of section 344 of the Cr.P.C. Such like are the matters which arc to be taken care of either by the executive or the legislature. Any laxity shown by the subordinate Courts in future in this area shall be strictly and severely dealt with by this Court.

17. Like‑wise the subordinate Courts must also realise that they have ample powers to meet the increasing menace of non‑appearance of the witnesses or the non‑production of accused persons from the jail. These powers are bestowed upon the Courts for the purposes of being exercised and exercised effectively. Such luxuries on the part of tile polio, the prosecution, tile jail authorities or the witnesses must be met by resort to coercive and penal measures against the delinquents. The posture of helpless, passive on lookers adopted by the Magistrates and the trial Courts cannot be countenanced by this Court and shall be met with exemplary measures.

18. All offences are criminal. But then there are certain offences which are more criminal than others and the offences relating to narcotics and drugs are one such category of most criminal offences. The drug menace is a monster which is fast engulfing our society. The very survival of our future generations appears to be at stake and in serious jeopardy. A concerted effort has to be made to curb this evil before the situation becomes irretrievable. Mere holding of seminars, symposiums, workshops and sending people abroad for training is not going to help unless the same are followed by effective steps taken on the ground to meet this challenge.

19. Fruitful and expeditious finalisation of investigation, zealous prosecution of offenders, timely production of under‑trial prisoners before the Courts and prompt appearance of witnesses is the obligation of the police. The District Superintendents of Police must ensure faithful and effective discharge of these obligations by their subordinates. They should devise means of periodical monitoring not only of investigations but even of the pursuit of prosecution of the offenders at the trial stage.

20. Being saddled with the maintenance of law and order within his local limits, the District Magistrate exercises control not only over the police administration in his district but is also the local incharge of the prosecution agency in his area. He must, therefore, also take effective steps to eliminate the incidence of lethargic and deficient investigations, the non‑production of under trial prisoners and the non‑appearance of prosecution witnesses before the learned trial Courts.

21. The ultimate responsibility of administration of justice, however rests with the Courts. The police and the investigating agencies are only the instruments provided to the Courts to assist them in the discharge of this responsibility. The Courts of law must remember that they are operators and not the slaves of these tools. If the Courts, at any stage, feel that these implements have got blunted or rusted, then it is for the Courts to sharpen and chisel them through the means provided to them by the law.

22. Before I part with this order, I may also add that Special Courts stand established in our country to deal with cases of corruption, terrorist activities, customs, medicinal drugs and bank frauds etc. The magnitude of the narcotics n curse is no less appalling. Therefore, the Federal Government may consider the advisability of constituting Special Courts to deal exclusively with the cases relating to narcotics and also to consider Legislative measures to make laws relating to this menance more stringent.

23. As for this bail application, the learned counsel prays for permission to withdraw the same.

24. Dismissed as withdrawn.

25. The file of this case be placed before my lord the Chief Justice and if his lordship so approves, copies of this order be circulated to all the learned Sessions Judges the District Magistrates and the District Superintendents of Police in the Province for their information, guidance and compliance. N.H.O/752/L. Petition dismissed as withdrawn.