1996 P Cr (PLP)

Maqsood Ahmad v. Summary Military Court, Pishin and 2 others PLD 1980 Quetta 71 ref. Ch. Muhammad Arshad for Petitioner. Zafar Mahmood Anjum for the State. Date of hearing: 2nd November, 1995. On 20-2-1995 Saif Ali, Inspector, C.I.A. Multan was on Gasht of the area in the company, of Muhammad Siddique, H.C. Muhammad Sharif Constable, Basharat Ali, Constable, Matsawar Ahmad, Constable and Manzoor Ahmad, Constable on the official vehicle No.MNL 6506 being driven by Muhammad Shakir, Constable. He was present at Chowk Kumaharanwala when he received a secret information that one person present at Chowk Kumharanwala was making sale of heroin. On that Saif Ali, Inspector reached alongwith the police party and apprehended that person who was none else than Ghulam Abbas alias Musa petitioner-accused. His person was searched and from his flank pocket 50 grams of heroin was taken into possession which was attested by Muhammad Siddique. H.C. and Muhammad Ashraf Constable. He apprehended Ghulam Abbas alias Musa petitioner there and then. He sealed 1 gram of heroin in the packet and remaining in another packet. He sent the formal complaint to the S.H.O., Police Station New Multan where F.I.R. No.82, dated 20-2-1995 was registered under Article 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 and under section 14 of the Dangerous Drugs Act, 1930. The site plan was prepared. The bail application of the petitioner was rejected by the lower Courts who has filed this petition to try his luck to be admitted to bail.

2. I have heard the learned counsel for the petitioner as well as the learned State Counsel and gone through the record before me. First of all I would like to resolve the controversy about the attraction of section 14 of the Dangerous Drugs Act, 1930. In this regard learned counsel for the petitioner has relied on Maqsood Ahmad v. Summary Military Court, Pishin and 2 others PLD 1980 Quetta 71 wherein it has been held that the Prohibition (Enforcement of Hadd) Order, 1979 is a Special Law of prohibition of intoxicants while the Dangerous Drugs Act is a law of general import as compared to the Prohibition (Enforcement of Hadd) Order, 1979 that the Prohibition (Enforcement of Hadd) Order, 1979 being a later law and having overriding provisions over all other laws on the subject would prevail over the relevant provisions of Dangerous Drugs Act, 1930 and that the accused in the circumstances can only be tried for an offence under the Prohibition (Enforcement of Hadd) Order, 1979 and not under Dangerous Drugs Act, 1930. As against this learned State Counsel laid the emphasis that the accused can be tried and convicted simultaneously with respect to both the penal laws. In my view the dictum enunciated in the aforesaid case law is applicable to the instant matter in all respects. The legal position is that the Dangerous Drugs Act, 1930 was not repealed by the Prohibition (Enforcement of Hadd) Order, 1979. However, Article 29 of the Prohibition (Enforcement of Hadd) Order, 1979 has made it clear that it will have effect notwithstanding anything contained in any other law for the time being in force. In other words the Prohibition (Enforcement of Hadd) Order, 1979 which was enacted to modify the existing law relating to prohibition of intoxicants so as to bring it in conformity with the Injunctions of Islam as set out in the Holy Qur'an and Sunnah has an overriding effect especially when as expressed in the aforesaid ruling it was a later law in comparison to the enforcement of Dangerous Drugs Act, 1930.1 would be glossing over an important aspect of the matter by expressing that for one alleged offence an accused cannot be convicted under two penal laws of different Acts/Ordinances. I, therefore, hold that the inclusion of penal section 14 of the Dangerous Drugs Act, 1930 in the F.I.R. can be and has to be ignored and I pass an order accordingly.

3. On merits I am in full agreement with the learned counsel for the petitioner-accused who canvassed before me that it is a case of admission of Ghulam Abbas alias Musa petitioner-accused to bail. The alleged recovery of the heroin was supervised by Saif Ali, Inspector C.I.A. at a place which was thickly populated and the time of alleged recovery is 10-00 a.m. After receiving the secret information no effort was made by the Police Officer to join any person from the public to justify the stand that no person from the public was willing to accompany before the raid. The Police Officers may be good witnesses. However, their veracity shall have to be determined through the weapon of cross-examination during the trial and at this stage while disposing of this bail application when the P.Ws. have yet to be examined their statements recorded under section 161, Cr.P.C. cannot be treated as sacrosanct. I am tempted to express my view that the law has to take its course. To exemplify all the Police Officers of all the ranks are respectable persons but the confession of an accused before a Police Officer of any rank has to be treated as inadmissible in evidence keeping in view the mandatory provisions of Article 38 of the Qanun-e-Shahadat Order, 1984. Likewise without putting the Police Officer td the test of cross- examination it would be giving a free hand to the P.Ws. on this case to be believed against the petitioner-accused without his trial. During the arguments on my query the S.H.O., Police Station New Multan present in Court has intimated that no case of the instant nature stands registered or is pending against this petitioner. This aspect of the matter has also to be considered while disposing of this application filed by the petitioner to allow him to enjoy the concession of human liberty by the grant of bail to him. The only fact that 50 grams of heroin is involved in this case is nothing enough because in a bail application the legal yardstick contained in section 497, Cr.P.C. is to be kept in view. In the circumstances the involvement of this petitioner in the case is held to be a question of further inquiry who is entitled to be admitted to bail.

3. For what has been said above, I accept this bail application and admit Ghulam Abbas petitioner accused to bail in the sum of Rs.30,000 (Rupees thirty thousand only) with one surety in the like amount to the satisfaction of the Sessions Judge, Multan. N.H.Q./G-310/L Bail allowed.