2009 PLP 133 (MLD)

GHULAM DASTAGIR A. SHAHANI, J.

Bail application is submitted on behalf of applicant Dildar Ali Pathan in a crime No.107 of 2008, Police Station Market, Larkana, offence under section 9(c) of the Control of Narcotic Substances Act, 1997. Facts of the prosecution case are that Inspector Asad Nabi Khichi, S.H.O. Police Station Market, Larkana on 25-3-2008 recorded F.I.R., stating therein that two big pieces of Charas weighing 1100 grams secured from accused Dildar Ali already arrested in crime No.106 of 2008, under sections 353, 504, P.P.C. of Market Police Station, Larkana, out of which 200 grams were sealed separately as sample, whereas 900 grams were sealed separately and case under section 6/9, C.N.S. Act was separately registered against him. After usual investigation police challaned the applicant to face the trial in the Court of law. Bail application was submitted before the trial Court, but that was rejected vide order, dated 6-6-2008 by the learned Sessions Judge/Special Judge for C.N.S., Larkana. Hence present application. Mr. Ali Nawaz Ghanghro, learned counsel for the applicant/accused states that applicant is innocent and has been falsely implicated in the case with mala fide intention and ulterior motive on the part of S.H.O. Police Station Market. In fact on 25-3-2008 at the instance of some criminal S.H.O. Market arrested the applicant and several maltreated him and arrested the family members of the applicant including his father, who were released later-on. Such news item was also published in daily "Kawish", dated 26-3-2008 to the extent that the applicant was arrested as a suspected, in the abduction of local businessman, whereas on 27-3-2008 another item was published in daily "Kawish" that two separate cases have been registered against the applicant/accused. According to him, alleged Charas has been foisted upon the applicant and victim of police high-handedness and he sustained as many as seven injuries at the hands of police. He further states that from alleged 100 grams Charas, 200 grams were separated, and it is not clear whether 200 grams were from both the pieces or not and further that instead of receiving 200 grams, Chemical Analyzer received 130 grams only and that was also dispatched on 30-5-2008, though incident was taken place on 25-3-2008. According to him, the applicant/accused was already arrested in crime No.106 of 2008, under sections 353 and 504, P.P.C. of same Police Station and both the mashirs are police personnel, as such, false involvement of the applicant/accused cannot be ruled out. He further states that Inspector Asad Nabi Khichi S.H.O. Police Station Market, Larkana, himself was a complainant, conducted investigation and challaned the case, "though all registered cases shall be investigated by the investigation staff in the District under the supervision of head of investigation," as such, same is a clear violation of Article 18(4) of the Police Order, 2002. Reliance is placed on the case of Muhammad Farooq Khan v. The State (2007 PCr.LJ 89), Nadeem v. The State (2007 MLD 1092), as well as upon unreported matters viz., Crl. Bail Applicant No.D-473 of 2007, Ghulam Muhammad v. The State, orders passed on 16-7-2007 at Principal Seat, as well as Criminal Bail Application No.D-39 of 2007, Sadiq Ali v. The State, Criminal Bail Application No.S-583 of 2007 Zakria v. The State, and Criminal Bail Application No. S-408 of 2007, Manzoor Ali Khawaja v. The State, orders passed on 14-2-2007, 21-4-2004 and 28-4-2008 respectively at Sukkur Bench, so also in a Criminal Bail Application No. S-313/2008, Nabi Dad Mahar v. The State, order passed on 24-7-2008 at Circuit Court, Larkana. Reliance is also placed in the case of Imtiaz Ali v. The State (2006 MLD 1961), Amir Bux v. The State (2007 PCr.LJ 1019), Noor Muhammad v. The State (2007 YLR 1973), Ali Murad v. The State (PLD 2007 Karachi 555), Syed Qamar Ali Shah v. The State (PLD 2007 Karachi 562), and Criminal Bail Applicant No. 367 of 2008, Khanzado v. The state, decided on 17-7-2008 at Circuit Court, Larkana. On the other hand, Mr. Naimatullah Bhurgri, learned State Counsel, opposed the grant of bail, on the ground that a huge quantity of Charas has been recovered from the applicant/accused and the case of accused falls within prohibition, contained in section 51 of the Control of Narcotic Substances Act, 1997 and further that a publication of news item cannot be considered at this stage. Heard learned counsel for the applicant, as well as to the learned State counsel, and with their assistance perused the material available on record. Case of the prosecution is that Inspector Asad Nabi Khichi, S.H.O. Police Station Market, Larkana on 25-3-2008 recorded F.I.R., alleging therein that two big pieces of Charas weighing 1100 grams were secured from applicant/accused Dildar, who was already arrested in a connected crime No.106 of 2008, offence under sections 353, 504, P.P.C. of Market Police Station, Larkana and from 1100 grams, 200 grams were separately sealed as sample though from Chemical Analyzer's report No.767, dated 16-7-2008, it reveals that net weight of the Charas received by his office on 30-5-2008 was 130 grams, whereas the alleged incident is dated 25-3-2008. As such, presumption can be taken that the sample was tampered with, with some mala fide intention. No private person from the locality was associated as mashir in the present case, though the provisions of section 103, Cr.P.C. would not be applicable in view of section 25 of the C.N.S. Act, but still each case is to be seen on its own merits, nature and circumstances, as observed by this Court time to time. Not only this, but a presence of seven injuries on person and publication of news item in daily "Kawish" on 26-3-2008 and 27-3-2008 respectively, prima facie, create a doubt in the mind that all such things cannot be managed. So far last ground raised by the learned counsel that Inspector Asad Nabi Khichi himself registered the case and investigated the same, though, "all registered case shall be investigated by the investigation staff in the District under the supervision of the head of investigation provided that the Government by special or general order may entrust investigation of offences under local or special laws as defined in the Pakistan Penal Code and punishable with imprisonment for a. term not exceeding three years with or without any other punishment to the police station staff." Therefore, such act of Inspector is a violation of sub-Article (4) of Article 18 of Police Order, 2002, supported by reported and unreported matters (supra), the concession of bail has been extended to the applicant/accused being a case of further enquiry. Offence under section 9 of C.N.S. Act, 1997, though would adversely affect the society, but it was yet to be proved that accused was involved in adversely affecting the society. Even if accused charged with including in activities, which were not approved by the society, the society which claimed to be looking after the law and order situation and as custodian of law should follow the law in toto, as no compensation is provided in the judicial system for accused detained, where for a long or short time and ultimately acquitted. Even otherwise only 200 grams of the alleged Charas was separated and sent for Chemical Analyzer report and such report would be conclusive only to the extent of 130 grams, as net weight of the property received by the office of Chemical Analyzer was 130 grams, and not 200 grams as stated in the F.I.R. The question, whether the entire recovered substance is covered by the definition of Narcotics, would be properly determined at the stage of trial including enmity. However, at this stage, as a result of tentative assessment, prima facie applicant/accused is responsible for 130 grams Charas received by the office of Chemical Analyzer and no expert opinion is available regarding remaining quantity of Charas. In view of the above facts and law relied upon cited at the bar, I admitted the applicant/accused on bail subject to furnish a solvent surety for an amount of Rs.300,000 and P.R. bond in the like amount to the satisfaction of the trial Court, by my short order, dated 29-7-2008. However, copy of the order be sent to the Provincial Police Officer, Sindh, Karachi, in order to act and implement Article 18(4) of the Police Order, 2002 strictly with full spirit, so such irregularity may not be repeated to the level of S.H.O. or Investigation Branch, in order to run the affairs smoothly as law provides, and to improve the performance of police officers, because where a certain things required to be done in a certain manner, it should be done in that manner or not at all. With above observations Criminal Bail Application No.S-340 of 2008 is disposed of. These are the reasons in support of my short order, dated 29-7-2008. H.B.T./D-21/K Bail granted.