'The petitioners seek bail after arrest in a case under Sections 337-A(i), 227-F(i)/337-L(ii), 302/148/149 PPC registered against them at Police Station, Hawaili Koranga, Khanewal vide FIR No. 66/2006 dated 11.5.2006.
2. The brief facts of the case as narrated in the FIR, which was logged on the statement of Manzoor Hussain, are that on the night of 11.5.2006 at 3 a.m.' the complainant alongwitli his son Muhammad Rafique and grandson Muhammad Afzal, grandson was sleeping in his house andafter hue and cry from the land of Manzoor all of them rushed towards his 'land and found Muhammad Arif and Zulfiqar armed with .12 bore guns, Muhammad Afzal armed with kassi, Manzoor, Murtaza, Zulfiqar, Zalioor, Dilmeer (petitioner), Allah Ditta, Muhammad Bakhsh and Zafar (petitioner), armed with s6tas while Rab Nawaz seated on the tractor. The accused allegedly caught hold of Allah Yar, Muhammad Ramzan and Khan Muhammad PWs. Barring Rab Nawaz, Allah Ditta and Arif co- accused, all the accused allegedly caused injuries on the persons of Allah Yar, Afzal, Ramzan and Khan Muhammad PWs while Arif co-accused caused the death of 'Muhammad ,Rafique son of complainant while inflicting a fire-arm injury on his chest. The motive of the occurrence was stated to be that Muhammad. Arif, co-accused had :illicit relations with the wife of Allah Ditta Nakiana and the complainant had stopped him from visiting the house of said Allah Ditta and due to said reason an exchange of abuses took place a day earlier to the occurrence.,
3. The petitioners were arrested in the said case. They applied for bail after arrest before the learned trial Court but the same was refused vide order dated 29.9.2006.
4. The learned counsel for the petitioner contends that it was a case of free fight in which three persons namely, Zahoor, Manzoor and Dilmeer petitioner also received injuries; that it was a night time occurrence; the role of causing a sota blow by Dilmeer petitioner on the knee of Khan Nakiana is negated by the fact that said Khan was not medically examined; that likewise the role of causing fist blows by Zafar 1,-titioner to Manzoor complainant also becomes doubtful as said Manzoor was also not medically examined. He adds that it was the complainant, party who attacked the accused party and during the occurrence three persons on the side of the accused party sustained injuries. In all said three injured accused have received 12 injuries on their persons which include injuries on the vital parts of their bodies but police malafidely failed to record counter version of the accused party. He further adds that co-accused namely Ghulam Murtaza, Allah Ditta and Rab Nawaz have already been granted bail by this Court vide order dated 18.10.2006 as such they are entitled to bail on the principle of consistency also. Lastly he has contended that no injury, received' by the deceased has been attributed to them.
5. The learned counsel of the State assisted by learned counsel for the complainant has opposed the bail application on the ground that the petitioners have been named with specific roles in an FIlk. which was promptly lodged. He has further contended that the injuries received by the accused persons have been fully explained in the FIR. Lastly he has contended that charge in this case has been framed on 13,10.2006 and the case is fixed for prosecution evidence. In this regard he has placed reliance upon Gulzar Ahmad Vs. State (1995 P.Cr.L.J 1494), Muhammad Sadiq vs. State (1980 SCM R 203) and Muhammad Jamil Vs Muhammad Rafique and another (P.L.D) 1989 S.C.
585).
6. After hearing both the parties I have come to the conclusion that the role attributed to the petitioners is not supported by the Medico Legal Certificate inasmuch as neither Khan P.W nor the complainant was medically examined. This fact has not been denied by the learned State counsel.
The question as to which of the parties was aggressor would be determined by the learned trial Court after recording, of evidence. As far as submission of the learned counsel for the complainant that the charge has been framed and the accused are not entitled to bail on this count is concerned it would be relevant to point out here that said charge was framed on 13th of October, 2006 while bail application of co-accused namely Ghulam Murtaza, Allah Ditta and Rab Nawaz was accepted by my learned br.other Maulvi Anwar-u/-Haq, J. vide order dated 18.10.2006 and even otherwise it is settled law that if the case is found to be of further inquiry the accused becomes entitled to bail as a matter of right and when the question of right is confronted with the question of propriety, the later must give way to the earlier. This proposition was expounded in the judgment pronounced by the Hon'ble Supreme Court of Pakistan in case .reported as Muhammad Ismael V. Muhammad Rafique (PLD 1989 S.0 585). Keeping the judgments reported as Muhammad Sadiq vs. State (1980 SCMR 2003) and Muhammad Ismael Vs. Muhammad Rafique and another (PLD 1989 SC 585) in consideration now I proceed to examine the facts of the case to see whether the case of the petitioners requires further inquiry or not. After scanning the record I have come to the conclusion that as far as car was being driven by convict-appellant Akhtar Munir (juvenile) while convict-appellants Hazar Gul and Sultan Mehmood were sitting with him in the front seat whereas a third person, namely, Rana Habirur Rehman, absconding co-accused, was sitting in the rear seat. On checking of the car, 17 packets of heroin, weighing each packet 1 k.g. was recovered from the engine beneath the bonnet of the car, which alongwith the car was taken into possession and the appellants were arrested.
3. On submission of challan against the appellants, they were put to trial by the learned Judge, Special Court (CNS) and charged u/S. 9 of the Control of Narcotic Substances Act, 1997 (herein after called the Act). After recording some evidence, appellant Akhtar Munir took the plea that he was juvenile, as such, could not be tried by the learned Special Court (CNS). Accordingly, he was referred to a Standing Medical Board for determination of his age. The Standing Medical Board by a letter dated 31.5.2004 intimated the learned Special Court (CNS) that he was of the age of 16/17 years. Accordingly, his case was sent to the Juvenile Court while the two appellants namely Hazar Gul and Sultan Mehmood were tried by the learned Special Court.
4. After recording evidence of PW-Samin Jan Khan, Inspector, Faidullah Muharrir (PW.2), Mir Badshah, Inspector and Syed Jehan Shah, F.C. in the case of Hazar Gul and another while PW- Samin Jan, SHO, Fidaullah, Moharrir (PW.2), Mir Badshah, Inspector (PW.3) and Shah Faisal, Constable (PW 4) in the case of Akhtar Munir, appellant, the appellants were examined u/S. 342 Cr.P.C. but they denied the charge against them. However, they neither examined themselves as their own witnesses nor produced evidence in defence. On appraisal of the evidence on record and hearing the learned counsel for the parties, the learned Judge, Special Court (CNS) by the judgment/order dated 10.12.2005 convicted appellant Hazar Gul and his co-accused Sultan Mehmood u/S. 9(c) of the Act and sentenced them to undergo imprisonment for life with a fine of Rs. two lacs each or in default thereof to stiffer further 1 year S.I. each with benefit u/S. 382-B Cr.P.C.
By the judgment/order dated 24.2.2005, the learned Additional Judge-I/Judge, Juvenile Court, Peshawar convict-appellant Akhtar Munir u/S. 9(c) of the Act and sentenced him to life imprisonment, simple and without any hard labour with benefit u/S. 382-B Cr.P.C. with the direction that he shall be kept in Borstle Institution or any other reformatory school. The appellants are aggrieved by the foregoing judgments of the learned two Courts below and have filed these appeals.
5. We have heard M/s. Abdul Fayyaz and Noor Alam Advocates for the appellants and Mr. Tariq Khan Kakar, Advocate for the State and have also perused the record.
6. Mr. Abdul Fayyaz Khan, the learned counsel for the appellants Hazar Gul and one other, contended that hatfirstly; near the Airport and about a mile away from the spot, the two appellants took lift in the car from the appellant Akhtar Munir, as such, neither they were aware of any possession of the heroin in the car nor any such heroin has been recovered from their possession, econdly; under the second proviso, as inserted by Criminal Law (Amendment) Ordinance, 1981, to S.516-A Cr.P.C., the word "Court" mentioned therein means the Court under whose. supervision and control the samples are to be taken from the narcotics and the remaining is to be destroyed means the Court, which is competent to inquire into or put the accused to trial but in the present case, samples vide certificate dated 16.11.2003 (Ex.A, PW-1/3) have been taken in the supervision and control of Mr. Fazle Subhan Khan, Civil Judge/Judicial Magistrate Ist Class, Peshawar and similarly the destruction certificate dated nil (Ex.A,,. PW-1/4) was also issued by him but in the case of convict-appellant Hazar Gul and one other, the competent Court was the Court of learned Judge, Special Court (CNS) and in the case of convict-appellant Akhtar Munir, was the learned Additional Sessions Judge-Ill, Peshawar but neither of the two have issued these certificates, as such, the learned Judicial Magistrate was not competent at all either to take samples or to destroy the remaining case property at all. These two certificates, as such, are wrong and illegal and if kept out of consideration, there remains no case against the appellants and thirdly; before taking samples or destruction of the case property, the. Magistrate or the Court competent to try the appellants had issued no notice to the appellants or their counsel which is a mandatory provision of law u/S. 516-A Cr.P.C. In support of this argument, the learned counsel for the two appellants placed reliance on the case of (1) Nawab Ali vs. The State (PLJ 1995 FSC 90), (2) Said Karim vs. Anti- Narcotic, Force (PLD 2003 Karachi 606), (3) Ijazuddin vs. The. State (2005 YLR 16) and (4) an unreported judgment dated 17.6.2004 of this Court in Cr.A. No. 198 of 2003.
7. The learned counsel for the convict-appellant Akhtar Munir, besides adopting the arguments of the learned counsel for the two appellants, contended that on the date of occurrence, appellant was admittedly a juvenile offender under the age of 18 years and under Cl.(a) of S. 11 of the Juvenile Justice System Ordinance, 2000 (XXII of 2000), on conviction the appellant was to be released on probation for good conduct but instead the learned trial Court has sent him to Borstle Jail, which is wrong and illegal and prayed that the appellant be released on probation. In support of his argument, he placed reliance on the case of Mst. Rahat Bibi and another vs. The State (2006 P.Cr.L.J, 561).
8. So far as the argument of the learned counsel for the appellants. Hazar Gul and one other that just reaching the spot, a mile away they took lift in the car from appellant Akhtar Munir and were not aware of any narcotics in the case is concerned, it is without force. According to the contents of the FIR the appellant. Hazar Gul is an Afghan refugee, hailing from the Province of Nauman, Afghanistan and on migration to Pakistan, has settled in Bara, Kajori, Khyber Agency, about 20/22 k.ms away from the spot towards south while appellant Sultan Mehmood is the resident of Ziarat Killey, Mohmand Agency, at present living at village Larrama, Charsadda Road, Peshawar, about 15/16 k.ms to the north of, the spot and the learned counsel for the appellants failed to explain as to what these two appellants were doing a mile away from the spot at a time when it was `asar' time.
Both the appellants have, therefore, failed to explain their presence on the spot at the time of occurrence in connection with some other business except the trafficking of the heroin. The first argument of the learned counsel for the appellant Hazar Gul and another is rejected.
9. As far as the second argument of the learned counsel for the appellants that Mr. Fazle Subhan Khan, Civil Judge/judicial Magistrate, Ist Class, Peshawar was not competent at all either to issue samples certificate dated 16.11.2003 (Ex.APW-1/3) or the destruction certificate (Ex. APW1/4) and the third argument that before the destruction of the case property, neither any notice was given to the appellants nor their counsel, are concerned, these are not without force. In the authorities, cited at the bar, it has been clearly laid down that the word "Court" appearing in the 2nd Proviso to S.516- A Cr.P.C. means the Court competent either to inquire into or conduct the,trial of the accused but in this case, the competent Court to put to trial appellants Hazar Gul and one other was the Court of Judge, Special Court (CNS) and in the case of convict-appellant Akhtar Munir, the Court of Additional Sessions Judge, Peshawar and not the Court of Civil Judge/Judicial Magistrate, 1st Class, Peshawar. These certificates were, therefore, issued without lawful authority, as such, of no legal effect. In the authorities, cited at the bar, it has also been laid down that before destruction of the case property issuance of notice to the accused or his/their counsel is mandatory, the non- compliance of which, would vitiate the entire proceedings against the accused. The conviction and sentences of all the appellants are, therefore, wrong and illegal and cannot be maintained. In view of these findings, there is no need to go into submission of the learned counsel for appellant Akhtar Munir that he may be released on probation.
10.Accordingly, the two Appeals No.855/2005 and 146/2005 are accepted and the conviction and sentences of the appellants are set aside. They shall 'be released from jail forthwith, if not required in any other case.