1996 PLP 1356 (MLD)

The facts giving rise to the filing of this Bail Application No.323‑B/96/ Multan by Liaquat Ali petitioner accused are as under:

2. On 26‑1I‑1995 at 5‑25 p.m. Liaquat Ali petitioner was arrested by the police, Police Station City, Shujabad, District Multan after an unlicensed rifle was recovered from him for the keeping of which he could not produce any licence and the same was taken into possession vide a memo. In this respect F.I.R. No.406 dated 26‑11‑1995 was registered at Police Station City, Shujabad under section 13 of the Arms Ordinance, 1965. He was under interrogation when he imparted the information before the Police that he had kept the heroin in his possession in his shop to make sale of the same. On 27‑11‑1995 at 9‑15 a.m. he took the police party to his shop the lock of which was opened by him by his keys and led to the recovery of 101 grams of heroin about which F.I.R. No.407 dated 27‑11‑1995 was registered under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 and under Article 9‑B of the Control of Norcotic Substances Ordinances, 1995. He was arrested in that case as well. The physical remand of Liaquat .Ali petitioner accused was obtained from a Magistrate 1st Class, Shujabad. While under interrogation of the aforesaid crime Case No.407 dated 27‑11‑1995 registered at Police Station Shujabad it was on 4‑12‑1995 at 11‑05 a.m that the petitioner allegedly imparted the information that he had kept the heroin and 7 MM rifle in his house. He took the police party to his house and led to the recovery of 500 grams of heroin which was taken into possession vide memo attested by two police officials. F.I.R. No.413 dated 4‑12‑1995 was registered in this regard under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 and under Article 9‑B of the Control of Narcotic Substances Ordinance, 1995. He was arrested in this case as well. His bail plea has been rejected by the learned Sessions Judge, Multan who has filed this petition befoze this Court to try his luck to be admitted to bail.

3. I have heard the learned counsel for the petitioner as well as the learned State Counsel and gone through the record before me. Learned counsel for the petitioner has referred to Article 22 of the Prohibition (Enforcement of Hadd) Order, 1979. according to which without the issuance of the search warrant by the Collector, Prohibition Officer or Area Magistrate the police could not enter the house of Liaquat Ali petitioner‑accused. He also referred to Article 18 of the Control of Narcotic Substances Ordinance, 1995 wherein the powers to issue the warrants for the arrest of an accused and for the search in the matter are narrated. He maintained that the petitioner was arrested in a case registered under the Arms Ordinance and the investigation in the matter was simply uncalled for and that also for many days resulting in registration of two criminal cases. He maintained that no person from the public was joined to witness the alleged recovery from the house of Liaquat Ali petitioner as contemplated under section 103, Cr:P.C. which aspect of the matter has gone to the root of the alleged recovery. He added that the brother of Liaquat Ali petitioner is the publisher of some newspaper wherein some news against the police officers were published and to wreak the vengeance the false case was got registered on the basis of false investigation. On the contrary learned State Counsel argued that the accused himself imparted the information in terms of section 40 of the Qanun‑e‑Shahadat, 1984 and that the recovery has been effected in accordance with law. He added that no person from the public was willing to accompany the police to witness the recovery and that the police officers are good witnesses in the matter.

4. Before embarking upon the discussion on the merits of this application I would like to reproduce as under Article 22 of the Prohibition (Enforcement of Hadd) Order, 1979:‑‑ "

22. Issue of search warrants.‑‑‑If any Collector, Prohibition Officer or Magistrate, upon information obtained and after such inquiry as he thinks necessary, has reason to believe that an offence under Article 3, Article 4, Article 8 or Article 11 has been committed, he may issue a warrant for the search for any intoxicant, material, still, utensil, implement or apparatus in respect of which the alleged offence has been committed. (2)??????? Any person who has been entrusted with the execution of such a warrant may detain and search and, if he thinks proper, but subject to the provision of clause (1) of Article 12, arrest any person found in the place searched, if he has reason, to believe such person to be guilty of an offence under Article 3, Article 4, Article 8 or Article 11. "

5. Article 18 of the Control of Narcotic Substances Ordinance is reproduced as follows:

18. Power to issue warrants.‑‑(1) A Special Court may issue a warrant for the arrest of any person whom it has reason to believe to have committed an offence punishable under this `Ordinance, or for the search, whether by day or by night, of any building, place, premises or conveyance in which he has reason to believe any narcotic drug, psychotropic substance or controlled substance in respect of which an offence punishable under this Ordinance has been committed as kept or concealed. "

6. Article 40 of the Qanun‑e‑Shahadat, 1984 is reproduced as under:‑‑‑ "

40. How much of information received from accused may be proved.? When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. "

7. I have to express my view that after the recovery of the unlicensed rifle regarding which F.I.R..No.406 dated 26‑11‑1995 was got registered under section 13 of the Arms Ordinance, 1965 at Police Station City Shujabad, District Multan what was the necessity to put Liaquat Ali petitioner under interrogation. Article 40 of the Qanun‑e‑Shahadat, 1984 cannot be used in routine. In a murder case the recovery of the weapon of offence is to be got effected from the accused under Article 40 of the Qanun‑e‑Shahadat, 1984. It was not a case of the aforesaid type. Where the material is to be used as a corroborative piece of evidence the provisions of Article 40 of the Qanun‑e‑Shahadat, 1984 are enforceable, applicable and helpful. On 27‑11‑1995 as well another separate case was registered and surprisingly the interrogation continued up to 4‑12‑1995. This aspect as well as the fact that it is mentioned in the F.I.R: in the beginning that the interrogation was effected in the presence of Javaid‑ul‑Hamid, S.I.,/ S.H.O, Sadder Din A.S.I., Muhammad Ikram H.C., Muhammad Chamman, Muhammad Hussain, Muhammad Arshad and Muhammad Arif Constables have made out that the police was out to further entrap the petitioner accused. I am at a loss to understand as to why and how physical remand of the accused was granted by the Magistrate Ist Class. My view is that it happened so as there is the common complaint these days that the police and the Magistracy are in league. The Magistrate Ist Class who granted the physical remand acted in routine without any legal justification. Hence the relevant order in the matter is held to be illegal and liable to be set aside regarding which I pass an order accordingly. Keeping in view this aspect of the matter as well, the alleged recovery can easily be termed to be doubtful even at this stage, the benefit of which has to be granted to Liaquat Ali petitioner‑accused. The alleged recovery was effected on 4‑12‑1995 ht 11‑5 a.m. from Jalalpur Road, Shujabad City which was a congested area. There is nothing on, the record to make out that any effort was made by the police to join any person from the public in terms of B section 103, Criminal Procedure Code as the search was allegedly being effected from the house of the petitioner‑accused. This laxity and negligence on the part of the police officer concerned has made me to hold that the matter was being processed with illegally in routine and the legal benefit of the same shall have to be derived by and allowed to Liaquat Ali petitioner. No doubt the police officials/officers of any rank are respectable persons, but the law of the country has to be given the weight. The alleged recovery was effected from the house of the accused and the mandatory provisions of section 103, Criminal Procedure Code should have been complied with. Without the use of the weapon of cross?-examination on the statements of the recovery witnesses who are the members of the police force have to be viewed with caution. It would be proper to express that with respect to the working of the police in our country the legislature has placed legal limitations. To exemplify the confession of an accused person before any police officer of any rank is inadmissible in evidence which cannot be proved against a person accused of an offence under Article 38 of the Qanun‑e?Shahadat Order, 1984.

8. The police has by mistake applied Article 9‑B of the Control of Narcotic Substances Ordinance, 1995 which in fact should be Article 9‑C of the said Ordinance, 1995 in view of the weight of the heroin recovered which allegedly was more than 100 grams. However, due to the non‑compliance of Article 22 of the Prohibition (Enforcement of Hadd) Order, 1979 and section 18 of the Control of Narcotic Substances Ordinance, 1995 according to which the police has to obtain the permission from the competent person/Authority to make search of the shop/house of the accused and the aforesaid other reasoning, the involvement of Liaquat Ali petitioner‑accused can safely be held to be a question of further inquiry and the alleged recovery would not prove to be a barrier for his admission to bail required and desired by him. The plea of Liaquat Ali petitioner is that the alleged recovery is false and fictitious and thus it cannot be inferred and deduced that he gave his consent for entry in his house so as to make me hold that the aforesaid mandatory provisions about the search to be effected in his house stood eclipsed and thus liable to be ignored. Keeping in view the texture of the society, the complaints against the police working and the maintenance of the human rights for which all the regime(s) profess with heart and soul; the aforesaid free hand about the violation of the mandatory provisions of law cannot be allowed to the police. If the said violation is allowed, working of the police would be nothing but conjectural hypothesis taking the society towards judicial anarchy resulting in the administrative chaos.

9. During the arguments it was admitted that before the registration of F.I.R. No.406 dated 26‑11‑1995 under section 13 of the Arms Ordinance, 1965 no case of the instant nature was registered/decided and pending against Liaquat Ali petitioner‑accused which is a salubrious circumstance in his favour to make me express that he has good case for his admission to bail.

10. For what has been said above, I hold that the involvement of Liaquat Ali petitioner‑accused in this case is a question of further inquiry who is entitled to be admitted to bail.

11. I, therefore, accept this application and admit Liaquat Ali petitioner ?accused to bail in the sum of Rs.50,000 (rupees fifty thousand) with one surety in the like amount to the satisfaction of the learned Sessions Judge, Multan with the direction to appear before the trial Court on every date of hearing failing which the trial Court may cancel his bail. N.H.Q./Z-3/L????????????????????????????????????????????????????????????????????????????????????????????????? Bail allowed.