' ALI SAIN DINO METLO, J.--- Applicant Muhammad Farooq Khan, facing charge of possessing/transporting 25 kilograms of Charas has applied for bail. The trial Court has refused him bail mainly on the ground that a very big quantity of Charas i.e. 25 kilograms was involved in the case and that in narcotic cases law regarding grant of bail was very stringent.
2. Briefly, the facts of the prosecution case are that on 3-4-2006 at 1805 hours Inspector Muhammad Saeed Ahmed Rind, Station House Officer (S.H.O.), Police Station Defence, Karachi, accompanied by other members of his team, intercepted a Jeep bearing No,BC9158 in a street behind Asif Hotel, near Al-Madina Mosque, "C" Area, Defence-III. All the four occupants of the jeep were armed with pistols and they opened fires upon police. Police returned the fires, and succeeded to apprehend two of them, namely, Buland Khan and Amir Abbasi, and seized one pistol from each. The remaining two managed to escape. Nobody was hurt. On search 25 kilograms of Charas and 25 pints of indigenuous liquor were secured from the jeep. Buland Khan and Amir Abbasi told police that the escapees were Sabz Ali alias Malanga and Farooq Khan and that the Charas and liquor belonged to the latter. The memo. Of their arrest and recovery as well as the first information report (F.I.R.) recorded in the book maintained under section 154 of the Code of Criminal Procedure, 1898, shows that the escapees were not known to the S.H.O. Or any member of his team. They further show that on the basis of their own statements Buland Khan and Amir Abbasi were exonerated from the charge of possessing/transporting the Charas and Liquor and only one of the escapees, namely present applicant Farooq Khan was charged for that. He was arrested on 5-4-2006 while he was in custody in some other case.
3. The F.I.R. Shows that the S.H.O. Entrusted the investigation to one of his subordinates, namely, Sub-Inspector Raja Jahangir, though according to clause (4) of Article 18 of the Police Order, 2002, the investigation was to be made by the investigation staff and he could not entrust the investigation to his own subordinate belonging to the staff of his police station. The proviso to the clause, which according to the rules of interpretation has to be strictly construed, providing that the Government may, by general or special order, entrust the investigation of offences under local or special laws punishable with imprisonment not exceeding three years, to the police station staff, will also be of no help as in the present case the offence of possessing/transporting 25 kilograms of Charas is punishable under section 9(c) of the Control of Narcotic Substances Act, 1997, with death or imprisonment for, life or imprisonment for a terms which may extend to fourteen years. Thus, the entrustment of investigation by the complainant to his own subordinate, being in clear violation of Article 18(4) of the Police Order, 2002, was patently illegal. Though it may not have the effect of vitiating the trial, it will certainly damage the fairness of investigation, one of the main objects sought to be achieved by the Police Order, as well as the credibility of the officer blatantly violating the law. Such an officer will be exposing himself to disciplinary action and may also incur the risk of penalty under the Police Order.
4. Out of the four occupants of the car, three, including Buland Khan and Amir Abbasi who had allegedly opened fires upon the police and were captured at the spot, were exonerated. The applicant was not identified by the police at the time of his alleged escape from the scene of offence. He was arrested on the next day i.e. On 4-4-2006 by police of Police Station Mahmoodabad in some other case and was formally arrested in this case on 5-4-2006 but was not put to the identification of the eye-witnesses of this case in any identification parade. It seems that Buland Khan and Aamir Khan and Sabz Ali alias Malanga were exonerated and the applicant was implicated mainly on the basis of statement of Buland Khan and Aamir Abbasi before police that the Charas and liquor belonged to the applicant only. They have not been cited as witnesses.
5. Mr. Habib Ahmed, learned A.A.-G., conceded that it was a novel method of investigation that the persons who were caught red-handed were exonerated on the basis of their own statements and the person who was implicated on the basis of their statement was not even put to the identification of the eye-witnesses. Nevertheless, he opposed bail on the ground that the jeep in question was found to be of his (applicant's) son and he was involved in several other cases of narcotics. These may be the circumstances creating suspicion but cannot be treated as reasonable grounds for belief. One cannot be kept in custody on the basis of mere suspicion. Every case is to be decided on its own merits.
6. The plea of the applicant that on 27-4-2006 the applicant along with his brothers Maroof Khan and Haroot Khan had gone to Peshawar by Air-blue, had withdrawn money amounting to Rs,32,66,000 from National Bank of Pakistan, Akora Khattak Branch (1520) Nowshera and had returned back to Karachi via Islamabad by Air-blue on 4-4-2006 at 1-50 a.m., supported by travel and bank documents, has not been rebutted by the prosecution in any manner. It casts serious doubt upon the claim of prosecution that the applicant had escaped from the place of incident on 3-4-2006 at 1805 hours.
7. The contention of the learned A.A.-G. That in view of the big quantity of Charas involved in the case and the provision of section 51 of the Control of Narcotic Substances Act, 1997, imposing ban on the grant of bail, the applicant may not be granted bail, is without any weight. The quantity can be given importance only when the same is linked with the applicant by cogent evidence. Similarly, the ban contained in section 51 (ibid) will be attracted only when there are reasonable grounds for believing the applicant guilty of the alleged offence. In the cases Gul Zaman v. The State 1999 SCM R 1271; Bahadur Khan v. The State 2000 SCM R 677 and State v. Syed Abdul Qayum NLR 2001 Criminal 426 SC the Honourable Supreme Court of Pakistan has clearly held that this Court was competent to grant bail in appropriate cases, notwithstanding the provisions of section 51(ibid). Keeping in view the above mentioned facts and circumstances of case, we are tentatively of the view that there are no reasonable grounds for believing the applicant guilty of the offence and it requires only further inquiry into his guilt. He is, therefore, directed to be released on bail on furnishing one surety in the sum of Rs,5,00,000 (Rupee five hundred thousand) only and personal bond in the like amount to the satisfaction of the trial Court.