' MUNIB AKHTAR, J.---By means of a short order dated 18-5-2010, I had, for the reasons hereinafter stated, granted bail to the applicant.
2. This bail application arose out of Crime No,90 of 2009 registered at Police Station Mohbat Dero on 31-7-2009 at 4-30 p.m. In respect of an incident alleged to have occurred on the same day at 3- 30 p.m. The complainant was the S.H.O. Of police station. According to him, on the day of the incident he along with a police party were patrolling within their jurisdiction, and near the Jatoi- Lashari link road they stopped and started checking passing vehicles. While engaged in this activity they saw a man coming from one side. He had a plastic bag (usually called a "shopper") in his hand, and on seeing the police party, he at once turned back and tried to run away towards the katcha side. On this, the police party regarded the person as suspicious, and after chasing him, arrested him' under section 54, Cr.P.C. Upon questioning the person identified himself as the present bail applicant. The complainant S.H.O. Stated that since private mashirs were not available, two of the police party were so appointed, and the personal search of the applicant was carried out. Two small pieces of charas were found from the side pocket of the applicant's shirt. The plastic shopper that he was carrying was opened and also found it to contain one piece of charas.
According to the complainant, the police party took weighing scales from their investigation bag and when the three pieces were weighed, the total came to 1100 grams, out of which 100 grams were sealed separately for sampling purposes, and the remaining 1000 grams was also put under seal. The bail applicant was arrested for an offence under section 9(c) of the Control of Narcotic Substances Act, 1997 and the F.I.R. As aforesaid was registered.
3. Learned counsel for the bail applicant submitted that although three pieces of charas were allegedly recovered from the applicant, there is no indication as to whether one sample was taken from one piece (or if so which one), or whether samples were taken from each of the three pieces separately. Thus, according to learned counsel, insofar as the matter is presently concerned, the bail applicant must be regarded as having at most 100 grams of charas in his possession which would bring the matter within section 9(a) of the CNS Act. Learned counsel further submitted that the applicant was apprehended and searched only by the ordinary local police and not by the excise police. He pointed out that the investigation kit as available with the local police does not include weighing scales and therefore the statement to this effect made in the F.I.R. Was of dubious validity. He placed reliance on Abdul Wahid v. The State 2009 M LD 1151 and Qutbuddin v. The State 2009 PCr.LJ 1340 and submitted that the matter clearly required further enquiry before the offence, if any, committed by the bail applicant, or the extent thereof could be ascertained.
4. Learned A.P.G. Opposed the grant of bail. He submitted that there was nothing to show that there was any enmity between the police officials concerned and the bail applicant as would cause the former to falsely implicate the bail applicant in a bogus case. He submitted that the total weight of the three pieces of charas recovered from the bail applicant came to 1100 grams, and therefore it was not relevant for present purposes as to the piece or pieces from which 100 grams had been taken for sampling purposes. He accordingly prayed that the bail application be dismissed.
5. In my view, the first point that must be taken into consideration is the very arrest of the bail applicant under section 54, Cr.P.C. It has become common for the police to stop, search, detain, or arrest a person simply because according to subjective view of the police, he is purportedly acting in a suspicious manner, and that for them to take shelter behind section 54, Cr.P.C. Or some equivalent provision in any. Applicable special law (including the CNS Act, 1997). Such conduct by the police must be strongly deprecated. Any search or detention of a person is an interference with his liberty and unless done strictly in accordance with law would be a grave violation of Article 9 of the Constitution, which is one of the most important, and indeed the very first, of the fundamental rights granted by the Constitution. Neither section 54, Cr.P.C. Nor the equivalent provision under the CNS Act, 1997 (section 22), leave the matter of the search, detention or arrest of a person to the subjective satisfaction of the police. Rather, the test is objective, and there must be clear reasons and reasonable grounds for suspecting that a specific offence has been committed before the police can take recourse to any of the aforesaid provisions. Thus, the first clause of section 54 requires either a 'reasonable complaint" or some "credible information" or 'reasonable suspicion' that the person concerned has been involved in a cognizable offence. Section 22(b) of the CNS Act allows the police to detain and search a person only if the former have "reason to believe" that he has committed an offence under the said Act. The reputation of the police is so notorious that it is not unusual for even the most respectable person to try and avoid having any contact or interaction with them. The mere fact therefore, that a person turns away on seeing a police party in order to avoid any contact with them does not, in my view, gives the police grounds for having any "reasonable suspicion" that he has committed a cognizable offence (section 54, Cr.P.C.) or "reason to believe" that he has committed an offence under the CNS Act (section 22(b) thereof). In the present case therefore, prima facie, the actions of the police in stopping, searching, detaining and arresting the bail applicant were completely unlawful, and hence all subsequent events following thereon (only in the context and to the extent, of this bail application) were also likewise prima facie unlawful.
6. Quite apart from the foregoing, I find force in the contentions raised by learned counsel for the bail applicant that since the F.I.R. Does not indicate whether the 100 grams of charas were taken from one piece (and if so, which piece) or from each of the three pieces alleg8dly recovered from the bail applicant, at the present time and for purposes of this application, he should be regarded as being in possession of only 100 grams which would clearly take the matter within the ambit of section 9(a) of the CNS Act. A somewhat similar proposition was accepted by this Court while granting bail in the two reported cases relied upon by learned counsel for the bail applicant. It is also to be noted that although as per F.I.R. Itself the police party was stopping and searching passing vehicles, no serious attempt appears to have been made to join private persons as mashirs in the matter. Although it is correct that in appropriate circumstances, police officials can serve as mashirs, it is to be expected that in the first instance, a proper and serious attempt would be made in each case to associate private and independent person with any search and detention matter, as this would ensure transparency and serve to establish confidence in the public about the conduct of the police. Finally, no proper explanation is forthcoming from the record as to how the local police party had weighing scales readily available with them, when the admitted position is that their investigation kit does not normally have such equipment.
7. For the foregoing reasons, I had granted bail to the applicant in terms of short order referred to above, i.e, on his furnishing one solvent surety in the sum of Rs,75,000 and P.R. Bond of like amount to the satisfaction of the trial 'Court. Needless to say, the observations made in this order are of a tentative nature and only for purposes of this bail application. Nothing herein shall affect the determination of the facts at the trial or influence the trial Court in reaching its decision on the merits of the case. The applicant is directed to cooperate fully with the trial Court and the investigation agency and attend the trial Court and comply with all directions in this regard and to make no attempt to delay or frustrate the trial proceedings. If he does so, the concession of bail may be withdrawn.