' SYED YAHYA ZAHID GILANI, J.---In this case the injured complainant Sajjad Ahmed reported to police that while sleeping in the courtyard along with other inmates of the house, he woke up at midnight listening scream of his mother Mst. Ansar Bibi and saw that she was caught by a person from her neck line and three more persons were standing by side. He also yelled and tried to catch hold of one, but he fired with pistol and injured his left leg, whereafter all the four persons fled away by scaling over the parameter wall.
2. None was arraigned by name in the relevant F.I.R. No,206 dated 15-5-2007 of Police Station Saddar Haripur registered under sections 324/452/34, P.P.C., because the complainant admittedly did not identify the assailants due to darkness.
3. The next morning, Investigating Officer recovered one .30 bore empty, one .30 bore charger and one dust colour woollen `Chaddar' being remains of the assailants.
4. On 16-5-2007, the complainant Sajjad and his brother Muhammad Fiaz offered supplementary statements wherein they charged Imran son of Ali Muhammad, being owner of woollen `Chaddar', left in their house at the time or occurrence. They also nominated Mehbub (the accused petitioner), Imran alias Goga son of Muhammad Urnar and Iqbal, for entering in their house at night time for theft because a detective sniffer dog, the services of which were hired by P.W. Muhammad Fiaz, pointed out the house of Mahbub. On 17-5-2007, P.W. Muhammad Fiaz also got his statement recorded under section 164, Cr. P. C . Accordingly.
5. The accused-petitioner Mahbub (in prison), so arrested on 17-5-2007, was declined post arrest bail by learned Judicial Magistrate-1, Haripur, on 26-7-2007, and by learned Additional Sessions Judge-III, Haripur, on 10-8-2007. Hence, this petition.
6. Since counsel for the petitioner did not appear due to lawyers strike, his grounds in the bail application were carefully gone through. The complainant was present and heard in person because his counsel also did not appear for the same reasons. Mr. Muhammad Wajid Khan, Deputy Advocate-General was heard for State-Record has been perused.
7. Prosecution's fervent emphasis rests on the following report of Watch Out (Pvt.) Limited Pakistan:- - Dated 16-5-2007 ' Case registered by: Muhammad Fiaaz son of Muhammad Riaz, resident of Alluli Village, Tehsil and District Haripur.
' It is to certify that the crime of robbery happened in the above mentioned man has been disclosed by our detective dogs. By the team Commander when dog is released and set free, he pointed the house of Mr. Mehbub son of Said Zaman. By the team Commander, members of this house are suspected men.
' This certificate has been issued for record.
' DOG No,SOLO 2081/DTC (Sd.) 16-5-2007
8. It is, inter alia mentioned in the grounds of bail petition that the accused-petitioner Mahbub is behind the bars for the last more than nine months although he is innocent and has been falsely implicated. His confinement is merely on the basis of suspicion created by a dog.
9. The complainant submitted that the detective sniffer dog was procured by his brother Muhammad Fiaz from a firm known as "Watch Out (Pvt.) Limited Pakistan" controlled by a senior retired army officer of the rank of Lieutenant Colonel and after detection by the sniffer dog, there is no doubt in the mind of the complainant party that the accused petitioner along with his co- accused were involved in this crime.
10. Mr. Muhammad Wajid Khan learned Deputy Advocate-General supporting the orders of two courts below argued that the detective dogs are trained all over the world to search for many substances including agricultural produce, chemicals, currency, drugs, contrabands, explosives, fire-arms, human remains as well as crime evidence, signs of life and even termites etc. Etc. He argued that one notable quality of detective dogs is that they are able to discern individuals scents even when the scents are combined or masked by other odors. He added that a sniffer dog's sense of smell is 2000 times more sensitive than that of human. They can even detect things that had been left for the years. The blood can be detected by them even if it has been scrubbed off from a surface.
11. I am conscious of the fact that in the cases like present one, mostly it becomes impossible for police to trace out the culprits and in such cases assistance of the detective dogs becomes very helpful to eradicate such like criminal activities. It is now a recognized mode of investigation in the most civilized and developed countries and application of this mode must be encouraged in our country because scientific research has proved usefulness of detective dogs and their accuracy.
12. The print and electronic media has wide spread the information about trainings and works of dog ranging from hunting, watching, detecting substances, searching for missing persons, human remains or buried human lives in disaster, with remarkable accuracy.
13. According to information from "Wikipedia" (the free Encyclopedia, available on internet) in United States, United Kingdom, Belgium, Neitherlands and many developed counties there is a concept of police dogs, trained specifically to assist police and similar law enforcement personnels, during their work. They use "Public Order Enforcement Dogs" to chase, hold or detain suspects by virtue of threat of it being released. Likewise, they use "Tracking dogs" to locate suspects, or find missing persons or objects, "Illicit Substance Dogs" to detect drugs, explosives and contrabands, specially on air ports, "Cadaver Dogs" to detect decomposing odor of bodies, etc.
14. The sniffer dog depends on smell or olfaction. In living things, it is a "chemical sense". There are hundreds of olfactory receptors, each binding to a particular molecular feature. Odor molecules possess a variety of features and thus excite specific receptors more or less strongly. This combination of excitatory signals from different receptors makes, or what we perceive, is the molecule's smell. In the brain, olfaction is processed by the olfactory system. It is abundantly true that sniffer dog's sense of smell is more sensitive than that of human being. The following quotations from the New Encyclopedia Britannica Volume 4 page 149 is relevant in this regard:- "Dogs are the first animal to have been domesticated. They probably originated somewhere in Eurasia approximately 12,000 to 14,000 years ago".......
' The dog's best developed senses are smell and hearing. Its nasal passages can process large amounts of air, and the olfactory centre in the brain is enlarged. The dog's hearing is also acute; it can respond to frequencies of up to 35,000 vibrations per second (human hearing stops at 20,000).
Sight is relatively poorly developed, although certain hounds (e.g. Gray-hounds and Afghans), known as gazehounds or sight hounds, have been bred to follow their prey---usually antelopes or hares---visually. All dogs lack colour vision".
' The following quotations from the Encyclopedia Americana International, Edition Volume IX page 234-235 also augments the above discussed informations:-- "DOG, a carnivorous mammal, probably the first animal domesticated by man. How or when this domestication took place is not known with certainty, but the dog's association with man began at least 10,000 years ago........ "
' The dog can hear pure tones of 35 kiloherzs (KHz: IKHz = 1,000 cycles per second, whereas in man, 120 KHz appears to be the top limit. The dog's visual acuity is not especially sharp and is roughly comparable to man's. However, dogs probably cannot perceive colours and see only shades of gray. The dog's most important sense is that of smell. Exact measurements of this sense have been rather difficult to make, and questionable that the ability to track faint or old substances the scenting ability of dogs is not very different from that of man, but in the detection of certain aliphatic (fatty) acids-acids present in the skin secretions of mammals and left behind in their track-dogs have been shown to be more than a million times more perceptive than man.
' Usefulness of Dogs.--Man has used dogs for many purposes, including hunting, guarding, racing, companionship, and leading the blind. Some applications have been quite odd. The fresh have used dogs to locate period truffles-edible fungi that grow underground. Modern narcotic officers have used dogs trained to detect drug odors in luggage and packages. St. Bernards have been used to search out snow-covered trials and warn of hidden crevasses. They have also been used to locate people buried by snow avalanches".
15. The bottom line of above discussion is that in the new millennium when the research in different areas of life has progressed to peaks, the oldest servant of human being, created by a Allah SubhanahuTa'alah in the shape of dog, it can better serve in detection of criminals and eradication of crimes, there is no reason to discard this facility.
16. However, I have got some reservations about the modalities pertaining to its use, for which necessary guidance is required to be imparted. In additional thereto, the status of evidentiary value of detection done by a sniffer dog is also required to be determined.
17. First of all I would like to point out that according to principles of safe administration of justice if the standard of proof for conviction of an accused in a Court of law is beyond shadow of doubt, the inception of investigation in criminal cases is always based on suspicion. In case where the culprits are not known, an Investigating Officer has to take start on the basis of presumptions and he has no other choice but to include suspects in the investigation.
' If a sniffer dog is used in a blind crime, and the dog points out a particular house, it does not mean that each and every person, or a person chosen by complainant, residing in that house is the actual culprit. When the sniffer dog points out a house, its duty ends, but at that very moment the duty of Investigating Officer starts to further investigate the case and collect more evidence to inculpate a particular person. I mean to say that further corroborative evidence is required to lay hand on a particular person as accused.
18. Moreover, the process of detection by sniffer dog, even if sponsored by the complainant, must be supervised and managed by the Investigating Officer, who must try to ensure compliance of section 103, Cr.P.C. In letter and spirit calling upon two or more inhabitants of the locality to watch the process of search and detection by the sniffer dog, as far as it is possible. This is highly essential to protect the rights of innocent persons, falling in the margin of error of the sniffer dog.
19. Besides all that, the Investigating Officer must also get it ascertained and bring on record that the sniffer dog has been properly trained by a recognized firm, as it is a hyper-technical job and different breeds of dogs are trained for different jobs.
20. I am constrained to bring on record these instructions for guidance in this bail matter because in the jurisdiction of this Circuit Bench tendency of using sniffer dogs in detection of blind crimes by complainants, on private basis, is increasing.
21. The use of this recognized mode of detection all over the world, especially in the developed countries, cannot be denied to citizens of our country but this activity should be streamlined in a way that neither innocent persons are forced to face ordeals nor helpless victims are deprived of modern techniques of investigation. It would be more appropriate if the State sponsored organization in Police Department is set up for this purpose to provide expert services to Investigating Officers, when and where needed. I strongly recommend it for public welfare.
22. Now turning to the case in hand, as I have observed in the above discussion that sniffer dog, if points out a house, it raises only a suspicion that the culprit remained in that house, as it has been mentioned in the report, reproduced in para. 7 above. This pointing out by the sniffer dog only creates a ground for the Investigating Officer to further investigate that who is the actual culprit and the Investigating Officer shall have to collect more evidentiary data for trial to prove the case against a particular person in Court, beyond shadow of doubt. In this behalf an identification parade of the suspected persons, through sniffer dogs, under the supervision of a Judicial Magistrate, can also be arranged, as a second step before further investigation.
23. For the time being, the Investigating Officer has since not collected more substantive corroborative or circumstantial evidence against the accused petitioner Mahbub, his involvement in the case needs further enquiry.
24. For these reasons I directed the release of the petitioner on bail, by my short order announced on 26-2-2008.