' ALI SAIN DINO METLO, J.--- Having failed to obtain bail from the trial Court i.e. The Special Court for the Control of Narcotic Substances, Naushahro Feroze, comprising Sessions Judge, Naushahro Feroze, applicant Syed Ghulam Mustafa Shah approached this Court for bail.
2. Briefly, the facts of the prosecution case are that on 29-12-2004 at 1630 hours, on receipt of spy information in advance, a patrolling party of police, headed by Assistant Sub-Inspector (A.S.-I.)
Ghulam Abbas Almani of Police Station (P.S.) Moro, apprehended applicant Syed Ghulam Mustafa Shah on Gachero Road near Animal Husbandry, Moro, and secured 1250 grams of Charas, contained in a polythene shopping bag, from his possession. One other person, who was with him, managed to escape. He was also having a shopping bag in his hand. He (Syed Ghulam Mustafa) disclosed that he was Altaf alias Bhago son of Moula Bakhsh Nagraj.
3. The first information report (F.I.R.) of the A.S.-I was registered in the book prescribed under section 154 of the Code of Criminal Procedure, 1898 (hereinafter referred to as "the Code") by the Station House Officer (SHO) of Police Station Moro, who, on completion of investigation, filed charge-sheet on 12-1-2005 showing the applicant in custody and Altaf alias Bhago as absconder.
The latter was subsequently, arrested and detained in jail.
4. On a complaint made on behalf of the applicant, the matter was reinvestigated under the orders of the Deputy Inspector-General of Police, Sukkur, by the Deputy Superintendent of Police (Headquarters) Naushahro Feroze, and it was found that the applicant had been falsely implicated by the A.S.-I. In conspiracy with his companions for which disciplinary action was taken against all of them. The Government of Sindh was also moved for according permission to withdraw the case.
Nevertheless, the trial Court did not give any benefit to the accused. They were refused bail and the report of reinvestigation was turned down on the ground that it was not in accordance with the Code. Application of accused Altaf alias Bhago under section 265-K of the Code for his acquittal was also rejected.
5. The applicant was apprehended in the Town of Moro in broad daylight but no person from public has been cited as witness. The provisions of section 25 of the Control of Narcotic Substances Act, 1997, does not relieve the investigators of their duty of conducting investigation in a fair and transparent manner and producing the best of the available evidence. A Court of law has to apply its independent mind to the facts and circumstances of each case and is not bound to follow the ipsi dixit of police. The version of the A.S.-I., which was not supported by any person from public, stood falsified by the subsequent report of his own superior officer i.e. The Deputy Superintendent of Police who, on enquiry, found that the applicant had been falsely implicated. In such circumstances, Mr. Habib Ahmed learned A.A.-G., rightly conceded that the case was fit for the grant of bail. In our view also, after the conduct of inquiry by the superior Police Officer finding therein that the applicant had been falsely involved by the A.S.-I., there remained no reasonable grounds for believing him guilty of the offence. It was for these reasons that we, by our short order passed on 23-8-2006, had admitted him to bail in the sum of Rs,50,000 with one surety and personal bond in the like amount to the satisfaction of the trial Court.
6. The trial Court turned down the subsequent report of the Deputy Superintendent of Police on the ground that after the conduct of an investigation by or under the authority of an Officer-in-charge of a police station, there was no provision in the Code for the conduct of any further investigation or enquiry by any superior Police Officer. The view taken by the trial Court is not correct. There is no end of investigation. It can continue even after the execution of sentence, otherwise it will not be possible to punish a perjurer under the second part of section 194 of the Pakistan Penal Code, 1860, on the basis of whose evidence some innocent person may have been executed. As regards powers of superior Officers of Police, they, by virtue of section 551 of the Code, enjoy all the powers of an Officer-in-charge, of a police station throughout the local area to which they are appointed.
7. It is true that the Court was not bound by the subsequent report of investigation. It was not bound by the first one either. But it does not mean that the reports were not to be taken into consideration at all. Indeed, before the record of evidence,, the material available before a Court is mainly that which is collected by the Investigating Agency. The subsequent reports of investigation are to be looked and taken into consideration in the same way as are the first ones.
8. While granting bail to the applicant, it was noticed that the case of co-accused Altaf alias Bhago was on the same or rather better footing. He was, therefore, called from jail and his case was also examined.
9. The only allegation against accused Altaf alias Bhago was that he, having a shopping bag in his hand, was with applicant Syed Ghulam Mustafa and had run away on seeing police. There is nothing to show that there was any incriminating article in his shopping bag, which he is shown to have taken away with him. There is also no, evidence to connect him with the Charas recovered from Syed Ghulam Mustafa. Merely from his conduct of running away it cannot be assumed that he was having Charas or any other narcotics substance in his possession.
10. The conduct of our police has never been people-friendly. They (police) have a history of law- breaking and exercising powers in an oppressive manner that, we are constrained to observe, flourishes as never before. People, particularly in the interior of Sindh, fear police as much as the fear any other danger. In such a scenario, no assumption of guilt can be drawn against a person running away on seeing police. There is no scope for such type of assumptions in criminal law. At the most, such conduct on the part of a person may give rise to a doubt justifying to carry the investigation further and, by no stretch of imagination, it can be treated as evidence sufficient for arraignment.
11. Trial is a jeopardy. Section 403 of the Code recognizes it as such. A person once tried and acquitted for lack of sufficient evidence against him cannot be tried again even though sufficient evidence may have been subsequently found against him.
12. Trial has also not ceased to be an ordeal. Normally, it takes years and sometimes decades to conclude and during the waiting period an' accused has to remain in jail or if released on bail he has to attend the Court on every date of hearing usually fixed after every fortnight or a month.
13. Trial being both jeopardy as well as ordeal, utmost care should be taken so that nobody is subjected to it without collecting sufficient evidence against him. Evidence can be regarded as sufficient when it, if not challenged or rebutted, is sufficient for recording conviction. In absence of sufficient evidence, trial will be an exercise in futility, which our Courts, already overburdened, cannot afford to undertake.
14. Unfortunately, it has been observed that a vast majority, about 90%, of the trials held in the Province and in acquittal mainly due to inefficient investigation. It shows that either innocent people are subjected to undergo the ordeal of trial or the real culprits escape punishment. Both ways it is harmful to the society. A Police Officer sending a case to a Court for trying an accused without collecting sufficient evidence against him either causes an innocent person to undergo unnecessary botheration of trial, for which he may incur damages as well as disciplinary action, or provides an opportunity to a guilty person to escape punishment, for which also he may incur disciplinary action. It is high time to take practical steps for improving efficiency of investigation so as to restore efficacy of the system which once worked very well.
15. Police have evolved their own arbitrary methods of policing. They least bother for a trial ending in conviction. It is clear from the fact that appeals against acquittals are rarely filed. Instead of following the law and getting an accused convicted by collecting and producing sufficient evidence against him, they have set their own standards of morality. Once they are convinced about somebody's involvement in an anti-social crime they involve him in one or the other case and send him up for trial and many times try and feel justified to implicate him in many cases so that by the time his case or cases are decided or he is able to get bail, he stands sufficiently punished by remaining in jail for the long period consumed in the process. In this way they get him punished before judgment, though in our legal system there is no concept of punishment before judgment.
16. In order to check the arbitrary methods of policing, Courts are required to play a proactive role.
Whenever, they find police to have transgressed the limits of law they should promptly provide relief due to the affected person. They must not follow ipsi dixit of police and should apply their own independent mind to the overall facts and circumstances of each case. They should be very careful in issuing process, particularly warrants, against a person shown as an absconder in the charge-sheet without availability of sufficient evidence against him. No useful purpose will be served to get such person arrested or declare him an absconder or proclaimed offender. No kind of satisfaction can be had by such exercise. It will be simply an abuse of the Court's process.
17. In the present case there was no evidence against accused Altaf alias Bhago. The only thing alleged against him was that on seeing police he had run away. It was not an offence under any law. Unfortunately, only for that he had to remain in jail for more than a year. Police, in the report of investigation, arraigned him as an accused of committing an offence punishable under section 9(c) of the Control of Narcotics Substances Act, 1997, and shown him as an absconder. The Court issued warrants against him and kept him in prison without proper application of mind. His request for acquittal under section 265-K of the Code was turned down. Mr. Habib Ahmed, learned A.A.-G., frankly conceded that there was no evidence against accused Altaf alias Bhago and there was no possibility of his conviction. Indeed, it was a glaring case of abuse of police powers and Court's process, and therefore, we, by our short order, dated 30-8-2006, had quashed the proceedings against accused Altaf alias Bhago and directed for his immediate release. These are the reasons for that. Before concluding, we would like to issue a note of warning to the investigators to refrain from arraigning people without collecting sufficient evidence against them and of caution to the Courts to be careful in the issuance of warrants for their arrest and incarceration.