ASIF SAEED KHAN KHOSA, J. --- Liberty is a fundamental right in our Constitutional dispensation and a person cannot be deprived of such right save in accordance with law. Sections 54 and 55 of the Code of Criminal Procedure are the main provisions regulating the situations in which a person accused of committing an offence may be arrested by the police and Sections 496, 497 and 498 of the said Code provide for the matter of admission or otherwise of an accused person to bail.
Broadly speaking a person accused of a bailable offence has a right of admission to bail and an arrested person can be refused bail if it appears to the Court concerned that "reasonable grounds" exist for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years. Reasonable grounds, of course, have to be grounds which are legally tenable, admissible in evidence and appealing to a reasonable judicial mind as opposed to being whimsical, arbitrary or presumptuous. The present petitions raise a serious issue as to whether the petitioners, who are citizens of this country entitled to enjoy the protection of normal Constitutional and legal rights, have been denied such rights on the basis of grounds which are reasonable or not.
2. Through these petitions Alam Zeb and Shakeel Khan petitioners have sought leave to appeal against the orders dated 06.06.2014 & 16.06.2014 passed by a learned Judge-in-Chamber of the Islamabad High Court, Islamabad in Criminal Miscellaneous Nos. 282-B & 311-B of 2014 respectively whereby post-arrest bail was refused to them in case F.I.R. No. 514 registered at Police Station Tarnol, Islamabad on 07.11.2013 in respect of offences under Sections 23 and 27 of the Drugs Act, 1976 and Sections 420, 468 and 471, PPC.
3. We have heard the learned counsel for the parties and have gone through the record of the case with their assistance.
4. After hearing the learned counsel for the parties and going through the record we have straightaway observed that both the present petitioners namely Alam Zeb and Shakeel Khan had not been nominated in the F.I.R. In any capacity whatsoever and even in the complete Challan submitted in this case their names had not figured at all. The record shows that after submission of the Challan a co-accused of the petitioners namely Muhammad Zareen had allegedly made a statement before the police maintaining therein that some spurious drugs had been supplied to him by the present petitioners and it was on the basis of such statement of that co-accused that the present petitioners had been roped into this case as accused persons but admittedly no recovery had been affected from their custody in connection with the present criminal case. After that development a supplementary Challan was submitted before the learned Trial Court after about four months of submission of the complete Challan and through that supplementary Challan the petitioners had also been implicated as accused persons in this case. The petitioners were arrested and later on the learned Trial Court as well as a learned Judge-in-Chamber of the Islamabad High Court, Islamabad refused bail to them.
5. While refusing post-arrest bail to the petitioners the learned Judge-in-Chamber of the Islamabad High Court, Islamabad had observed as follows:--- "Although present Petitioner was not directly nominated/charged in the FIR, however, during course of investigation co-accused Muhammad Zareen through statement charged the petitioner for supply of spurious drugs. Moreover, FIA authorities .Raided the house of petitioner Alamzeb and recovered various spurious drugs including Imatet injection, mixtard 30, Insuman Combo and Insuget 70/30 etc. Which prima facie connects the petitioner with the commission of alleged offences. It is also on the record that co-accused of petitioner as a gang member remain involved in similar offences in past for which several cases stands registered against them at Islamabad and Peshawar respectively. Although the offences with which petitioner has been charged are bailable in nature but heinous in nature and fatal against whole society. Therefore, keeping in view the peculiar circumstances of the case, I am not inclined to grant bail to the Petitioner at this stage."
The said observations show that the following four considerations had weighed with the learned Judge-inchamber for refusing bail to the petitioners:-
(i) The petitioners were not directly nominated/charged in the F.I.R. But they had been implicated in this case on the basis of a statement made before the police by a co-accused:
(ii) A raid was conducted by the police on the house of Alam Zeb petitioner and on the basis of that raid the FIA authorities had recovered some spurious drugs from the house of that petitioner;
(iii) Some co-accused of the petitioners are gangsters who had been committing similar offences in the past and they stand booked in many such criminal cases at Islamabad and Peshawar: and
(iv) Although the offences allegedly committed by the petitioners are bailable offences yet such offences are heinous in nature and fatal for the society at large and, thus, the learned Judge-in- Chamber of the Islamabad High Court, Islamabad did not feel inclined to exercise his discretion in favour of the petitioners by granting them bail.
We have found that unfortunately each one of the above-mentioned considerations weighing with the learned Judge-in-Chamber of the Islamabad High Court, Islamabad was either irrelevant or was vitiated by misunderstanding of the facts of the case or misapplication of the law.
6. It is undeniable that the petitioners had not been nominated in the F.1.R. In any capacity whatsoever and their names had not even figured in the complete Challan submitted in this case and that their names had been introduced in this case for the first time on the basis of a statement subsequently made by a co-accused before the police. The learned Judge-in-chamber of the Islamabad High Court, Islamabad ought to have appreciated that the statement made by that co- accused before the police was inadmissible in evidence as far as admission of his own involvement in the alleged offences was concerned and, thus, his statement vis-a-vis involvement of the present petitioners in the alleged offences was ordinarily twice removed from admissibility or reliability, particularly when nothing had been recovered from the custody of the petitioners in connection with the present criminal case. The learned Judge-in-chamber had misread the record while observing that a raid had been conducted on the house of Alam Zeb petitioner and some spurious drugs had been recovered from the same during the investigation of the present criminal case. The record in fact shows that the said raid and recovery were in connection with some other criminal case in which Alam Zeb petitioner had subsequently been admitted to bail by the learned Trial Court. The third consideration weighing with the learned Judge-in-chamber has been found by us to be nothing but shocking. For refusing bail to the petitioners it had weighed with the learned Judge-in-Chamber that some co-accused of the petitioners were gangsters involved in similar cases. It may be true that in the social context a man is known by the company he keeps but such social consideration has never been recognized as a legal consideration for denying a legal relief to a person if it is otherwise due. Keeping bad company may be ,socially reprehensible but that can hardly be treated as a legal disqualification. It goes without saying that the petitioners could not be visited with the sins of others and antecedents of some co-accused of the petitioners could not be laid at the door of the petitioners for refusing to exercise discretiOm in their favour. The last consideration weighing with the learned Judge-in-chamber of the Islamabad High Court, Islamabad has been found by us to be offensive to the settled crriminal jurisprudence of this country because it has so far been understood without any ambiguity that in a case involving a bailable offence bail is to be granted to an accused person as of right but in the case in hand the learned Judge-in-Chamber had observed that although the offences allegedly committed by the petitioners are bailable yet on account of such offences being heinous in nature and fatal for the society at large his lordship had not felt inclined or persuaded to admit the petitioners to bail. To start with, the learned Judge-in-Chamber was plainly incorrect in observing that the offences allegedly committed by the petitioners are bailable offences because the legal position is otherwise as far as many offences invoked in this case are concerned. Secondly, if for the sake of an argument the offences involved were bailable then the learned Judge-in-Chamber could not have termed them as heinous and fatal for the society because the legislature had not treated them as such by declaring them as bailable offences. And, thirdly, even if such heinous offences which, in the opinion of the learned Judge-in-Chamber, were fatal for the society at large were made bailable by the legislature then the learned Judge-in-Chamber was left with no discretion to refuse bail to the petitioners in a case involving such offences. We, therefore, note, and with grave concern, that in this respect the learned Judge-in-Chamber had not only misread the law but had also misapplied the same.
7. As if what has been observed above were not enough we have further noticed that the learned Trial Court had observed in so many words in its order dated 19.05.2014 that it was upon the directions of the Islamabad High Court, Islamabad that the present petitioners had been arrested in connection with this case and we have been informed in unison by all the learned counsel present before us that it was the same learned Judge-in-Chamber of the Islamabad High Court, Islamabad who had initially ordered a fresh inquiry/investigation of this case, had then ordered and caused the arrest of the present petitioners in connection with this case and thereafter he had himself sat in the same matter as a Judge for the purposes of refusing bail to the petitioners and that too by exercising his discretion in the matter. Such mingling of the roles of an investigator and a Judge by the learned Judge-in-Chamber has been found by us to be sufficient to raise many an eyebrow as such duplicity of roles neither behooved the learned Judge-in-Chamber nor suited the exalted office of a Judge that he adorns. It had not been realized or appreciated by the learned Judge-in-Chamber that the system of Coroners, Investigating Magistrates or judicial investigators in vogue in some other countries is not a part of our justice system and separation of the Judiciary from the Executive is a cornerstone of our Constitutional dispensation. If the learned Judge-in- Chamber had himself ordered and caused the arrest of the present petitioners then the minimum standards of justice required that his lordship ought not to have taken upon himself to sit in judgment over the matter so as to exercise his discretion for the purposes of refusing bail to the petitioners.
8. For what has been discussed above we have found that the petitioners had been refused bail by the learned Judge-in-Chamber of the Islamabad High Court, Islamabad on the basis of grounds which were neither reasonable not legally tenable and that the case against the petitioners is a case calling for further inquiry into their guilt within the purview of sub-section (2) of Section 497, Cr.P.C. These petitions are. Therefore, converted into appeals and the same are allowed and consequently Alam Zeb and Shakeel Khan petitioners are admitted to bail in the above-mentioned criminal case subject to furnishing bail bonds in the sum of Rs. 1,00,000/- (Rupees one hundred thousand only) each with two sureties each in the like amount to the satisfaction of the learned Trial Court.
9. The office is directed to bring this order tolhe notice of the Hon'ble Chief Justice of Pakistan as well as the Hon'ble Chief Justice of the Islamabad High Court, Islamabad for their kind information.