' RAHMAT HUSSAIN JAFFERI, J.--- Brief facts giving rise to the bail application are that on 4-4-2006 at 4-30 a.m. S.H.O. Tariq Rahim along with S.-I. Muhammad Rafi, S.-I. Ch. Muhammad Rasheed and other subordinate staff, on spy information, intercepted Jeep bearing Registration No,E-0296 at.
Parsi Gate, Main Road, Mahmoodabad in which the applicants were sitting. From the search of the jeep two bags, each containing 23 packets of Charas weighing 56 Kgs. Were secured from under the front passenger scat and 5 bags containing 97 packets of Charas weighing 164 Kgs. From in between the space of back seat were recovered. The total weight of Charas was 220 Kgs. The complainant drew samples. The applicants were arrested and such Mashirnama was prepared in presence of Mashirs. The applicants and the property were brought to the police station where the complainant lodged the report at 5-15 a.m.
2. The learned Advocate for the applicants has stated that the was registered by Operation Branch of the Police Station Mahmoodabad; that under law the investigation should 'have been entrusted to Investigation Branch of the police but the Operation Branch of the police station conducted the investigation with mala fide intention as there was recorded enmity between the applicants and the police of Mahmoodabad Police. Station, D.S.P. And T.P.O. Of Jamshed Town; that the applicants went to Peshawar on 27-3-2006 and returned on 3-4-2006 at midnight but the Operation Branch of the police have involved the applicants in two other cases on the same night being Crimes Nos.138 and .141 of 2006, before the arrival of the applicants in Karachi. He has further stated that few days before involving the applicants in these false cases, the Justice of Peace ordered the registration of F.I.R. Against, the T.P.O., D.S.P. Bakhtawar of Jamshed Town, the complainant S.-I.
Tariq, S.LPs. Ghulam Nabi Afridi, Hameed and Rafiq, H.C. Aslam and 25 police constables of Police Station Mahmoodabad; that before that another F.I.R. Was ordered to be lodged by the Justice of Peace against the D.S.P. Ch. Bakhtawar, S.I,Ps. Ghulam Nabi Afridi and S.H.O. Police Station Mahmoodabad; that the applicants have been involved falsely in the case and that they have been granted bail in other cases.
3. Conversely, the leanied A.A.-G. Has stated that under Article 18 of the Police Order, 2002 all cases are to be investigated by the Investigation Branch of the police but vide proviso to sub-Article (4) of Article 18 the Provincial Government has been authorized to entrust investigation of offences under Local and Special Laws punishable with imprisonment not exceeding 3 years to the Operation Branch of the pollee; that by virtue of sub-Article (5) of Article 11 the P.P.O. Being the ex- officio Secretary to Provincial Government had issued order, dated 21-12-2005 by which the investigation of offences under Local and Special laws have been entrusted to the S.H.Os. Of concerned police stations, therefore, the Operation Branch of the police was competent to investigate the case. In support of his arguments he has produced the Standing Order No,208 of 2005 dated 21-2-2005 issued by the P.P.O. Sindh, Karachi. He has further stated that the case of the prosecution has been supported by the Mashirs; that the incident took place at odd hours of night, therefore, private witnesses could not be associated in the investigation, however, he has admitted the filing of various applications and order of Justice of Peace fOr registration of cases against T.P.O. 'and D.S.P. Of Jamshed Town and complainant and other Police Officers of Police Station Mahmoodabad which is under the jurisdiction of Jamshed Town.
4. As regards the objection of the learned Advocate for the applicants about the investigation of the case, Article 18 of the Police Order, 2002 deals with the said subject, that reads as under:-- "18. Posting of Head of Investigation.-- (1) The head investigation in a general police area other than the Capital City District or the City District shall be of the rank of Additional Inspector-General of Police.
(2) The head of investigation in a capital City District or City District shall not be below the rank of Senior Superintendent of Police.
(3) The head of investigation in a District shall not be below the rank of Superintendent of Police and shall be responsible to his own hierarchy subject to general control of the District Police Officer.
(4) All registered cases shall be investigated by the investigation staff in the District under the supervision of the head of investigation: ' Provided that the Government may by a special or general order, entrust investigation of offences under Local and 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.
(5) The District Police Officer shall not interfere with the process of investigation. The head of investigation shall however, keep the District Police Officer informed of the progress of all cases which have a bearing on public order. The District Police Officer shall provide full support to the head of investigation in the performance of his duties.
(6) "Investigation shall not be changed except after due deliberations and recommendations by a board headed by an officer not below the rank of Senior Superintendent of Police and two Superintendents of Police, one being incharge of the investigation of the concerned District: ' Provided that the final order for the change of investigation shall be passed by head of investigation in the general police area who shall record reasons for change of such investigation: ' Provided further that the second change of investigation may only be allowed with the approval of the Provincial Police Officer, or the Capital City Police Officer, as the case may be."
5. Under the above provision of law all cases are to be investigated by the Investigation Branch but vide proviso to sub-Article (4), the Provincial Government have been given power to entrust the investigation of the offences under Local and Special Laws with punishment of imprisonment for a term not exceeding 3 years with or without any other punishment to the police station staff commonly known as Operation Branch of Police. The learned A.A.-G. Was asked to place on the record the order of the Provincial Government within the meaning of proviso to sub-Article (4) of Article 18, he could not produce any such order but took protection under sub-Article (5) of Article 11 and - produced the Standing Order No,208 of 2005 dated 21-2-2005 of P.P.O. By which the P.P.O. Has entrusted all cases registered under Local and Special Laws to the S.H.O. Police station concerned for investigation. This order does not show that cases involving imprisonment for a term not exceeding three years were only assigned to the concerned S.H.Os. But under this order all the cases registered under. Local and Special Laws without. Specifying their punishments have been entrusted to the S.H.O. Concerned police station to investigate the same. This means that under this order the P.P.O. Has entrusted investigation of all such offences to the S.H.Os. Irresptctive of their punishments, which may carry punishment upto death. This, by itself; is in clear violation of proviso to Article 18(4).
6. The learned Advocate for the applicants has challenged the Standing Order No,208 of 2005 dated 21-2-2005 issued by P.P.Q. Sindh on the ground that the entrustment of the investigation from Investigation Agency to concerned police station is the function of the Provincial Government; that the Provincial Government have not delegated such power to the P.P.O.; that Article 11(5) does not cover the powers of proviso to Article 18(4). Conversely, the learned A.A.-G. Has stated that the P.P.O. Was declared as ex-officio Secretary to Provincial Government and apart from administrative and financial powers, "other powers" under the Police Order and any other law for the time being in force can be exercised by the P.P.O. In order to appreciate the arguments it will be profitable to reproduce Article 11(5) of the Police order, which reads as under:-- "11(5) The Provincial Police Officer, posted under clause (1) shall have administrative and financial powers as ex-officio Secretary to the Provincial Government and other powers under this Order, or any other law for the time being in force and Islamabad Capital City Police Officer posted under clause (2) shall have the same administrative and financial powers."
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11. A perusal of above provision of law shows that the P.P.O. Has been declared as ex-officio Secretary to the Provincial Government in respect of administrative and financial powers and other powers under the Police Order, 2002 or any other law for the time being in force and Islamabad Capital City Police Officer posted under clause (2) shall have the same administrative and financial powers only. The phrase "other powers" appearing in sub-Article (5) follows the words "administrative and financial powers". The phrase "other powers" demonstrates general powers, whereas "Administrative and financial powers" deals with particular powers. In such a situation when general words which follows particular and specific words will presume to be restricted to the same genus, class and category of those specific and particular words. This rule is called the rule of ejusdem generis. The Maxwell on the Interpretation of Statutes Twelfth tdition at page 297 under the heading "General Words Following More Specific" with sub-heading "The ejusdem generis rule" defines the same principle in the following manner:--- "But the general word which follows particular and specific words of the same nature as itself takes its meaning from them and is presumed to be restricted to the same genus as those words. For "according to a well established rule in the construction of statutes, general terms following particular ones apply only to such persons or things as are ejusdem generis with those comprehended in the language of the Legislature". In other words, the general expression is to be read as comprehending only things of the same kind as that designated by the preceding particular expressions, unless there is something to show that a wider sense was intended, as where there is a provision specifically excepting certain classes clearly not within the suggested genus."
8. Justice Z.A. Channa in his book "Interpretation of Statutes" First Edition March, 1984, while dealing with the doctrine of ejusdem generis, observed as under:-- "Another example of the control of statutory language by surrounding language and circumstances is illustrated by what is comprehensively known as the ejusdem generis doctrine which has been constantly applied by Courts in the construction of statutes. Bacon states the rule thus, "all words whether they be in deeds or statutes or otherwise, if they be general and not express or precise shall be restrained unto the fitness of the matter or the persons". The same thing has been expressed by Lord Campbell in his statement in Reg. v. Edmundson that where particular words are followed by general words the latter must be construed ejusdem generis with the former.
The general words following the specific enumeration are confined in effect to alia similia preceding it. In such a case the full or ordinary meaning is not attached to the general words which would ordinarily be attached to them but it is restricted by the genus or class or category preceding them. On this principle it was held under English Law that in the expression "corn-grass or other products" the generic term "other products" did not include "young trees" because the latter were not similar to grass and corn but were of a different category from the products specified and in another case arising under the Sunday Observance Act of 1677 which enumerated tradesman, artificer, workman and labourer and these words were accompanied by the words "any other person" it was held that the word -person" in the latter expression was confined to callings of the same kind as those specified by the preceding words and accordingly did not include a farmer, a barber or a solicitor.
21.1. Privy Council.--- The Privy Council applied this doctrine in a case reported as in the matter of Sir Stuart Samuel. The case arose under 22 Geo.III, c.45 an Act of Parliament of the year 1782 which declared that it was enacted to preserve the freedom and independence of Parliament and to prevent the sapping of that freedom by members being admitted to profitable contracts. The disabling provision in the construction of which their Lordships had to consider the doctrine recited that a member must have directly or indirectly undertaken a contract with "Commissioners of his Majesty's Treasury or of the Navy or Victualling Office or the Master General or Board of Ordinance or any one or more of such Commissioner" or "any other person or persons whatsoever". It was held that the class of persons mentioned in the first section were servants of the Crown in 1782 (the date of the Act) who were holding office in the British Government as contrasted with the Irish Government or any other Government of the British Dominions or Dependencies beyond the seas and the words "any other person or persons whatsoever" should be read ejusdem generis with the preceding words and could only refer to any one who held office in the British Government of a kind similar to those enumerated before."
9. Nevertheless, there is a condition in applying the doctrine ejusdem generis that the specific words should belong to one category. Mr. Justice Z.A. Channa in the above book, while dealing with the said subject, at page 60, observed as under:-- "21.2 Genus essential for the application of the doctrine.--- It is necessary, however, for the application of the doctrine that a genus or class should exist in the specific words preceding the general words. In other words the specific words employed should belong or be such as could reasonably be brought under one category. If they are so dissimilar, however, as to make them impossible to be brought under any one class, the doctrine has no, application whatsoever, and the words should receive their full and ample meaning."
10. Now, it is to be seen whether or not the administrative and financial powers falls within one category. The question has been answered by the Police Order, 2002 while defining the word "Administration" in Article 2(1)(i), that reads as ;Linder:- "Administration" includes management, of administrative, operational and financial functions;
11. Thus, the administrative and financial powers fall within one category of powers as defined in Article 2(1)(i), therefore, the doctrine will be applicable in the case.
12. As an outcome of doctrine of ejusdem generis, it has been observed in the cases of Canterbury's (Archbishop), (1596) 76 ER 519 and Copland v. Powell, (1823) 130 ER 149 that there is another rule that statutes which deal with persons or things of inferior rank are not extended to those of superior degree by introduction of general words and the general words following particular words will not cover anything of a class superior to them to which the particular words relate. Following the said rule it was observed in Casher v. Holmes (1831) 109 ER 1263 that a duty imposed on "copper, brass, pewter, and tin and all other metals not enumerated" did not cover silver or gold, these being of a superior kind to the particular metals enumerated.
13. In the present case the power to transfer the investigation from Investigation Branch to staff of police station is apparently a superior power than the other administrative and financial powers, as through such power a statutory power of Investigation Branch will be transferred to police station staff who are otherwise not competent to investigate any case thereby frustrating the basic concept of separation of powers between the two separate wings of the police department, therefore, such power would not cover the general words mentioned in Article 11(5) of Police Order, 2002 but the same will be read with restricted meaning of the preceding words of general words.
14. Thus, the words "other powers" are to be read with restricted meaning of powers as that of administrative and financial powers preceding the phrase, therefore, under this . Article the specific power of Provincial Government as provided under proviso to Article 18(4) of the Police Order cannot be used or exercised by the P.P.O. Hence, the Standing Order No.208. Of 2005 dated 21-2- 2005 issued by the P.P.O. Sindh Karachi is beyond his jurisdiction, as such, it is violative of proviso to Article 18(4), therefore, it is illegal and cannot be acted upon.
15. If the investigation in respect of Local and Special Laws carrying punishment not exceeding three years intends to be entrusted to the police station staff then the Provincial Government is required to issue such notification and thereafter the investigation in such cases can be carried out by the police station staff. So far the Provincial Government has not exercised the powers of proviso to section 18(4), therefore, the investigation carried out by the staff of Police Station Mahmoodabad of Jamshed Town in respect of offence, which carries punishment of death, of this case was without jurisdiction. Nevertheless, section 156(2), Cr.P.C. Protects such -action, therefore, the proceedings before the trial Court would not vitiate as the trial Court has already taken cognizance in the matter, hence the case would proceed in accordance with law.
16. As regards the merits of the case, the applicants have levelled the allegation of enmity against the complainant, D.S.P. And T.P.O. Jamshed Town, under whose jurisdiction the Police Station Mahmoodabad is situated. The allegation is that several criminal cases are pending between the applicants and such police. The learned A.A.-G. Could not controvert the above position because of the documentary evidence produced by the applicants.
18. It will be noticed that previously the applicant Farooq filed constitutional petitions against the police in the years 2001 and 2004. Thereafter, the Justice of Peace directed the police to register the F.I.R. Against the police officials . On the basis of said direction the F.I.R. Was lodged bearing No.203 of 2004 at Mahmoodabad Police Station for offence punishable under section 392/34, P.P.C. But recently in the month of January, 2006 another series of litigation started. The applicant Farooq made complaint to the S.H.O. Against S.I.P. Ghulam Nabi Afridi of Mahmoodabad Police Station about' his highhandedness and taking material from his possession. It appears that the S.H.O. Did not take any action on the said application, therefore, the applicant Farooq filed an application before Justice of Peace for registration of case against D.S.P. Ch. Bakhtawar, S.I.P. Ghulam Nabi Afridi and S.H.O. Police Station Mahmoodabad on 25-1-2006. Copy of the application was sent to Chief Justice, High Court of Sindh; District and Sessions Judge, Karachi South; I.-G. Police; and T.P.O.
The applicant Farooq again filed another application in the month of March, 2006 before the Justice of Peace for registration of case against Ch. Bakhtawar D.S.P.; S.I.P. Tariq Rahim, complainant of the case; S.I.Ps. Ghulam Nabi Afridi, Muhammad Rafiq and Hanif Awan; H.C. Aslam; T.P.O. Jamshed Town and 20 police constables. The Justice of Peace granted both the applications by directing the police to register the F.I.Rs. Against the concerned Police Officers. Thus, there is serious recorded enmity between the police and the applicants.
19. The applicants claimed that on 27-3-2006 they went to Peshawar where the applicant Farooq encashed cheque of more than Rs,3,00,000 on 29-3-2006. Thereafter they returned to Karachi on 3-4-2006 at 12-00 midnight. The applicants produced the tickets and relevant documents. The learned A.A.-G. Could not controvert the said documents. On 3-4-2006, the complainant lodged F.I.R. No,138 of 2006 against the applicants at 7-30 p.m., another F.I.R. No,141 of 2006 was registered on 3-4-2006 at 7-50 p.m. At the same police of Mehmoodabad Police Station, apparently before the applicants reached Karachi and the third F.I.R. Viz. F.I.R. Of the present case was registered on the same night at 4-30 a.m. In .Both the above referred F.I.Rs, the applicants have been granted bail by the Court. The recorded enmity between the parties coupled with the plea taken by the applicants of their arrival on 3-4-2006 at 12-00 midnight, which the prosecution could not controvert, apparently adversely affected the prosecution story.
20. When there was recorded enmity between the T.P.O. And D.S.P., Jamshed Town, Police of Police Station Mahmoodabad and applicants, in all fairness the investigation should have been entrusted to some other police agency so that the true picture could have emerged after the fair and independent investigation. However, this has not been done but on the contrary it appears that highly interested and inimical police officials have investigated the case against the applicants, which according to law, they were not competent to do so, has further caused doubt about the fairness of the investigation and credibility of story. All these points require deeper appreciation of evidence, which can be done at the time of trial and cannot be undertaken at this stage as it is the function of the trial Court to appreciate and assess the evidence.
21. The point as to whether or not 56 Kgs. Of Charas can be put under a passenger seat of a jeep requires consideration because apparently such huge quantity cannot be accumulated under such seat. However, this point requires deeper appreciation of evidence which cannot be undertaken at this stage.
22. From the tentative assessm ent of the material placed before the Court it appears that the case of the applicants requires further inquiry within the meaning of section 497(2), Cr.P.C. Therefore, they are entitled to the concession of bail.
23. Consequently, the applicants are granted bail in the sum of Rs,2,00,000 each on furnishing solvent surety with P.R. Bond in the like amount to the satisfaction of trial Court. The application is allowed.
24. As the Standing Order No,208. Of 2005 dated 21-2-2005 issued by the. P.P.O. Sindh, Karachi has been found .To be without jurisdiction and illegally issued, hence cannot be acted upon, therefore, a copy of the order be sent to the P.P.O. Sindh, Karachi for issuing necessary instructions to the police station staff from acting upon such Standing Order arid restraining them from investigating the offences covered by the said Standing Order. Consequently, all the investigations of such cases which are pending before the police station staff stood transferred to Investigation Branch of Police. A copy of the order be also sent to S.P. Investigation of the Districts of the Province of Sindh for information and further action as per law.