1988 PLP 530 (MLD)

This bail application is moved on behalf of the applicants, who are facing trial under. Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979 before the Sessions Court, Karachi, South.

2. The facts of the case in brief are that on 26‑1‑1988 at about 3.00 a.m. complainant Syed Abid Husain, Inspector Incharge. Police Station Chakiwara, Karachi, alongwith S.I. Muhammad Anwar and A.S.I. Noor Khan was on patrol duty, when on receipt of spy information, he stopped car. No. 239‑616 Toyota Corolla. He found the present applicant Fayaz sitting oil the Driver's seat, while applicant Niaz Muhammad was sitting on the rear seat. From the possession of applicant Fayaz he secured 10 packets of Heroin weighing 10 Kgs and 4 slabs pieces of "Charas" weighing 4 Kgs. and also some cash. From the possession of applicant Niaz Mohammad from the rear seat he secured 5 Kgs. of `heroin', one pistol, some cartridges and some cash. He prepared such Mashirnama, took out and sealed the contraband articles on the spot. He took out half (1/2) Kg. 'of Charas and half (1/2) Kgs. of Heroin as samples, for chemical analysis and sealed the same. He registered such complaint on the same day‑at 6.45 a.m.

3. Mr. Rustum J. E. Kaikobad, learned counsel for the applicants has submitted that the applicants were arrested from their houses and the contraband articles have been foisted upon them. In support he has relied upon the copes of applications, statements and affidavit 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 applicants.

4. Mi. 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 applicants have not committed the alleged offence.

5. 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 relies 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 Mohammad Khan v. Dost Muhammad (P L D 1975 SC 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 AA.‑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 to 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. It is further submitted by Mr. Rustum J.E. Kaikobad learned counsel for the applicants that the Mashirnama does not show as to from what packages the samples were taken and whether they were drawn separately from the contraband secured from the possession of each of the present applicants. It is further 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 applicants were in possession of the alleged quantity of Heroin and Charas.

8. Mr. Abdul Ghafoor Mangi, learned AA.‑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 father 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 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 or 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 in 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 applicants 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."

11. Mr. Rustum J.E. Kaikobad, learned counsel for the applicants has relied upon the case of Mohammad Rashid v. The State (P L D 1964 P.W. Kar. 381) and the case of Husain Bux v. The State (P L D 1063 (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 applicants has also relied upon the case of Mohomed 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 to the investigation. Reliance is also placed on the cases of Hayat v. The State (1985 P Cr. L J 1353), Rehmatullah v. The State (1987 P Cr. L J 1409) and Husain 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 Husain Javeri v. The State was referred to and relied upon by the Federal Shariat Court in the aforesaid case of Mohomed Yameen. The first mentioned two cases of Rehmtullah and Hayat were referred to and approved by their Lordships of Hon'ble Supreme Court in the case of Mst. Zar Bano v. The State. In unreported judgment in the case of Mst. Zar Bano (Cr.P.C. No. 60‑K of 1987) their Lordships held "as the petitioner was found in possession of a ‑contraband articles in ‑her house which cannot be said to be a public place, the 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 AA: 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 R 392, decided by Shariat Bench of the Hon'ble Supreme Court. In this case, amongst others, the two points for consideration before their Lordships were:‑‑ "(i) 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, and (ii) 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 him or having been examined by the medical, practitioner or certified by him to have taken an intoxicant, and it was further held "thus there was no conflict between the provisions of Articles 16 and 12 (1)." Their Lordships have not given any clear finding, but point No. 4 (point No. ii para‑13. above) 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 was 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 ease is obviously distinguishable from the above‑reported case. In the instant case the applicants have been arrested as well as recovery has been made from the vehicle which has been held not to be a public place. The challan has also been submitted for the 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 Mr. 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 Honble 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 bail. This law laid down by the Hon'ble Supreme Court is binding upon this Court. As such I order the applicants :o be released on bail on furnishing surety in the sum of Rs. 3,00,000 (Rs. three lacs) and PR bond in the like amount each to the satisfaction of the trial Court. M.Y.H./F‑75/K Bail granted.