1. ' SYED ZAKIR HASSAN, J.---This order will dispose of the bail application No,84 of 2010, Nawab Jan alias Nawaz v. The State, which has been filed after the rejection of the first bail application by the learned Judge of Special Court-II (C.N.S.) Karachi, by order, dated 23-12-2009.
2. ' In short, the facts are that the police party headed by SIP, Shahid Khan, and included by his subordinate staff, namely, P.C. Abdul Ghaffar Niazi 12947, P.C. Zawar Hussain 17475, P.C. Ahmed Masood 7034, of the Police Station Jackson on 19-10-2009, at 0045 hours, on spy information, when tried to stop the suspect vehicle on the given date, place, and time, the occupants of the car made fire shots at the police party which also responded the same by making aerial fire shots from their official weapons at the car and after a short while of such shooting encounter and chasing the subject vehicle for some distance, the police party controlled the situation and apprehended the culprits Agha Mehtoob son of Shah Muhammad (driving the car) and Nawab Jan alias Nawaz son of Sardar Khan (seated in its rear seat), the police secured one unlicensed pistol of .30 bore with live bullets from each of them respectively, and at the same time, it secured one plastic bag from the vehicle containing 2000 grams of charas from under the seat of the accused Nawab. The police also secured from the surroundings of the place of vardat, the crime empties (.30 bore) three in number and arrested the culprits, and then sealed all the secured material as well as seized the car under the memo. Of search, arrest, and recovery, prepared there and then, before the official Mushirs, namely, P.C. Zawar Khan and P.C. Abdul Ghaffar Niazi taken out of the same police party. The police party brought the culprits and the crime property to the Police Station where three different F.I.Rs, for three distinct offences were registered in the light of the facts reported against on the part of the said head of the police party respectively. The matter was referred to the investigation agency/prosecution. The Investigating Officer, namely, S. I. Shahid Khan, investigated and visited the place of vardat in the first instance on the pointation of the said complainant of the case, under a memo. Of place of vardat witnessed by the official Musher's, The other Investigating Officer carried out further investigation and submitted the charge sheets in three different courts for the offences punishable under sections 324/353/34, P.P.C. 13-D of the Arms Ordinance, 9-C of the CNS Act, 1997 respectively.
3. ' I have heard the learned counsel for the accused and Assistant Prosecutor-General for the State and perused the record as well as the relevant law.
4. The memo. Of recovery in the case shows that the police not only sectizerl crime weapon and narcotic substance but also secured crime empties from the spot. The first Investigating Officer visited the site under a memo. Before official Mushirs, which shows no recovery of crime empties and nothing else of incriminating nature as well. Thus, the major part of investigation had already been acted upon before the F.I.Rs, were registered and there was nothing left on the spot to be secured as incriminating evidence by the Investigating Officer. Both the memo. Of recovery and that of place of vardat, have been witnessed by the police witnesses and there is no mention if any genuine attempt was made to procure services of public witness. There can be cases when public witnesses are reluctant to join or are not available, yet the duty of making a genuine attempt to join public witness, cannot be avoided and similarly, the prosecution cannot absolve itself of its duty to prove such attempt in such like case. In other words, a stereo type statement of non- availability of any public witness will not be sufficient to serve the purpose of justice in that regard, when at the relevant time, it was not impossible to procure the services of public witness, as is the case over here, for the place of vardat is a busy public place. More so, surprisingly one of the accused persons has been challaned for Narcotic Substance and the other although occupant of the said car, has not been Charge Sheeted for the reasons well known to the police, while, in the circumstances, both the occupants of the car could prima facie jointly be made liable to the said Narcotic Substance along with the owner of the car particularly when the story shows that the accused Mahboob, the driver of the car, too, had a unlicensed .30 bore pistol, and, the expert report shows that one empty is found to have been fired therefrom, and as such he, having fired at the police party, attempted to resist the said arrest, search and recovery and such aspect reasonably connect him with the crime narcotic substance together with the other.
5. ' The Chemical Examiner report shows that the samples of the secured charas were received on his part on 4-11-2009, i.e,, after 16 days' delay, which too, needs a plausible explanation to ensure that the said sample parcels remained un-tampered during the said intervening period of time.
6. Similarly, the ballistic expert report obtained in the matter against the secured arms and ammunition, shows almost same period of delay. Obviously, such inordinate delay makes the said reports cloudy. Besides, since the said memo. Of recovery does not bear signature of witness/mashir P.C. Zawar Hussain, the Investigating Officer was called for and put to explain the said lapse(s). He had no answer except ignorance thereof, which is no excuse. On his suggestion, the Court however, called for the said witness who though admitted the truthfulness of the facts incorporated in the said memo., but denied to have signed the same. He stated that his name was mentioned therein by the author thereof, as witness, with his consent obtained in the Police Station instead of the spot. With regard to the memo. Of place of vardat, the witness disclosed that he did not accompany the Investigation Officer, S.I.P., Abdul Ghaffar Niazi, to the place of vardat and neither any memo. Of place of vardat was prepared in his presence nor did he ever sign any such paper, and that the said memo. Bears his forged signature. The Investigating Officer S.I.P., Muhammad Saleem admitted that he did not properly investigate the matter and that if he had appropriately done his duty, he would have come to know of the aforesaid serious lapses, at the investigation stage.
7. Keeping in view the above, I am constrained to observe that the police officials concerned obviously acted beyond their permissible scope, for, as stated above, they secured the empties from the spot already, to prove their such detection of crime and thus left nothing behind to be done by the investigation agency, which is duty bound to collect evidence not only to prove the commission of crime but also to verify the facts reported against to ensure truthfulness thereof and simultaneously to detect falsehood, if any, involved in the matter, particularly when the investigation agency is made independent by the law for such purpose. No doubt, a prima facie presumption of fairness is attached with such purpose and, which, seems to have failed in discharging the same as per the requirement of law and justice. No doubt, a prima facie presumption of fairness is attached with the pubic officials entrusted with the task of criminal justice system respectively as to watch and ward and prevention of crime, investigation, prosecution and trial etc., yet such presumption does not absolve them each of the duty to ensure prima facie fairness of the reported crime (s) and that of the complainant as well as of the witnesses before coming to any conclusion against the accused.
8. An off-shoot nature case is a continuation of the main crime case. The record if placed in somehow partial manner, the Court must call for the unplaced connected record to consider the former in conjunction with the latter for coming to a positive possible conclusion in the interest of justice. Being seized of the matter, the Court can take judicial notice of each relevant factual aspect and record even in bail matter to ensure justice carefully and judicially screen the evidence of search, arrest and seizure etc. To have a constant check on the conduct of the police officials who detected the crime and investigated the same, to ensure their fairness in terms of transparency committed by the system. The duty of the Court to do justice according to law, is not limited in an off-shoot nature case, only to the evidence to be produced in Court but also, to ensure justice, the Court must take into consideration the entire available record of the investigation. In other words, the investigation record or proceedings of an incident of crime, which culminates in other distinct offence or offences subjective of trial either by same or different courts in point of jurisdiction, the Court trying an off-shoot crime case is duty bound, to ensure verification whether such main incident had taken place as reported against, for if the foundation is weak, the structure thereon can hardly be strong or there can be no structure without foundation. It is universal saying that justice should not only be done but it must appear to have been done. The principle applies not only to courts but to all essentials of the justice system, who are equally bound to practically demonstrate the application of the same.
9. The overall appraisement of the matter in hand, obviously, reveals that the same falls within the purview of a case of further enquiry. I, therefore, grant bail to the accused Nawab alias Nawaz in the case in the sum of Rs,50,000 with P.R. Bond in the like amount, in the interest of justice, to the satisfaction of the Nazir of this Court. It is however, made clear that the observations made in this order, which are tentative in nature, will not prejudice the case at trial. The same would however, hopefully, serve as future guidance in such like matters, The I.G.P. Sindh is directed to take the notice of the lapses, and gross negligence of the officials of his department, as observed above, and initiate against all the faulty officials from bottom to top including the complainant, witnesses, investigation officers, and the officials (who gave the requisite opinion and sanction for prosecution after scrutiny of the matter), appropriate proceedings through independent means, both on criminal and departmental sides in public interest at large under intimation to this Court.
10. He is further directed to get an inquiry held impartially through independent officer(s) in the matter of the reported crimes in hand, and cause the report thereof, to be submitted in the respective Court(s), if the case is found to be false, within one month time-period under intimation to this Court, in public interest.
11. ' Last but not the least, it is a matter of grave concern that the learned Court below has not properly gone through the record of the case with the result, the concession of bail stood refused to its part in spite of the aforesaid faulty and cloudy position of the case else there could have been no reason for the learned Court to come to a conclusion other than what is arrived at by this Court.