1999 P Cr (PLP)

(c) Maxim

" A communi observantia non est recedendum"

Meaning

Where a thing was provided to be done in a particular manner, it had to be done in that manner and if not so done the same would not be lawful. (d) Police Rules, 1934

S. 25.3

Criminal Procedure Code (V of 1898), S.156

Investigation of case by Crime Investigation Agency

Case was registered by official of Crime Investigation Agency but no order had been passed by the Superintendent of Police for investigation by the said Agency

Effect

Agency could not investigate case without any specific order

Official of the Agency was directed by High Court to hand over the case file to the Station House Officer of the police station failing which he could be liable to face legal consequences. Zia-ur-Rehman for Petitioner. Syed Zulfiqar Ali, A.A.-G. and Maqsood Ahmed Khan for the State. Date of hearing: 11th December, 1998. Arif Hussain, A. S.-I., C. I. A., Sheikhupura was on Gusht of the area on 25-10-1998 alongwith police party who received a secret information that Rifaqat Ali was present on Sem Nala Bridge, near Jamia Farooqia while in possession of liquor for sale. The police party reached there and apprehended Rifaqat Ali. One cane containing Desi liquor equal to about 100 bottles was taken into possession vide memo attested by the police constables. He sent the complaint at Police Station "A" -Division, Sheikhupura where formal F.I.R. No.795, dated 25-10-1998 was registered under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979. The complainant, A.S.-I. prepared the site plan and also recorded the statements of the P.Ws. Rifaqat Ali petitioner was arrested. His bail application was dismissed by the learned. Additional Sessions Judge, Sheikhupura with the reasoning that he is in the judicial lock-up for the last one and half months and that the report of the Chemical Examiner has connected him with the occurrence. The petitioner has filed this petition before this Court for his admission 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. The contentions of the learned counsel for the petitioner are that the offences do not fall within the prohibitory clause, the recovery stands affected and the petitioner is in the judicial lock-up. Learned counsel for the State stressed that the petitioner is involved in a case of recovery of liquor and, thus, is not entitled to be admitted to bail who was arrested on 25-10-1998.

3. At the very outset I would express that a bail application has to be disposed of within the frame work of section 497 of the Code of Criminal Procedure. If the matter is taken up under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, suffice it to express that Article 4 is bailable and to the extent of this alleged offence this petitioner is entitled to be admitted to bail as of right as contemplated under section 496 of the Code of Criminal Procedure. With respect to the prima facie attraction of Article 3(1) of the Prohibition (Enforcement of Hadd) Order, 1979 about the transport or sale of the intoxicants/liquor I have to express the view that the said offence does not fall within the prohibitory clause as the maximum punishment is rigorous imprisonment for a period of 5 years and with whipping not exceeding 30 stripes and to fine. According to the law of the land as contemplated under section 497(1) of the Code of Criminal Procedure if an offence does not fall within the prohibitory clause the acceptance of bail is a rule and its rejection, exception. In this regard the reliance can safely be placed on the ruling published as Tariq Bashir and 5 others v. The State PLD 1995 SC

34. For the exercise of the discretion in favour of the petitioner in this respect I am tempted to express that on my query the Police Officer as well as the learned State Counsel intimated that no case of instant nature is already registered or pending against this petitioner.

4. If the matter is taken up under section 6/9 of the Control of Narcotic Substances Act, 1997 about the possession of narcotic drug/liquor I have to express the view that Arif Hussain A.S.-I. C.I.A. was not competent to seize in public place the liquor and had no authority to search and arrest the petitioner accused. A perusal of section 22 of the Control of Narcotic Substances Act, 1997 read in the light of section 21 of the same Act has made me to hold that Arif Hussain, A.S.-I. was not competent and having the jurisdiction to detain, search and arrest Rifaqat Ali petitioner-accused for the recovery of liquor. I must express that the power and authority to set the law in motion is linked with the substantive jurisdiction without which the proceedings could not be initiated and consequently, processed with by Arif Hussain, A.S.-I. It would be proper to refer to the ruling Khalid Nawaz v. The State 1998 PCr.LJ 2008 (Lah. D.B.) of which I am the author, in this respect. It shall not be out of place to refer to the maxim "A communi observentia non est recedendum" where a thing was'' provided to be done in a particular manner it had to be done in that manner and if not so done the same would not be lawful. Considering this matter in this perspective also I hold that Rifaqat Ali petitioner is entitled to be admitted to bail than to be retained in jail.

5. For what has been said above, I accept this bail application and admit D Rifaqat Ali petitioner-accused to bail in the sum of Rs.25,000 (Rupees twenty-five thousand only) with one surety in the like amount to the satisfaction of the learned sessions Judge, Sheikhupura with the direction to appear before the learned trial Court on every date of hearing failing which the learned trial Court may cancel his bail.

6. Arif Hussain, A.S.-I., C.I.A. proceeded under Rule 25.3 of the Punjab Police Rules, 1934 and got registered the case under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979. However, after the registration of the criminal case at Police Station "A" Division, Sheikhupura he was bound to hand over the papers to the S.H.O. Police Station "A" Division, Sheikhupura. He cannot investigate the case. No order has been passed by the Superintendent of Police, Sheikhupura that the case shall be investigated by' the C.I.A. As such Arif Hussain, A.S.-I. has been directed to hand over the police file to the S.H.O. Police Station "A" Division, Sheikhupura today i.e. 11-12-1998 on his return to Sheikhupura, failing which he shall be liable to face the legal consequences. The S.H.O. Police Station "A" Division;, Sheikhupura is directed to submit the challan before the Court of competent jurisdiction in terms of section 173 of the Code of Criminal Procedure within a period of 14 days. Q.M.H./M.A.K./R-77/L Bail allowed.