SARDAR MUHAMMAD SARFRAZ DOGAR, J.---The petitioner namely Rashid Hussain, through instant petition, seeks his release on post-arrest bail in case FIR No, 233 dated 12.04.2017 registered under section 9(c) of The Control of Narcotic Substances Act, 1997 (hereinafter referred as "CNSA, 1997"), at Police Station Gadai District D.G. Khan.
2. Precisely, the allegations against the petitioner are that it had been reported by one Nasir Mehmood, S.I./CIA Staff, Incharge Dera Ghazi Khan that he accompanied by head constables namely, Allah Ditta HC/190, Muhammad Aslam HC/16, Amjad Ibrahim HC/595, Shaukat Hussain HC/68 and four constables were present at Bridge Piayaray Wali, when he received secret information that a person is standing at General Bus Stand towards East Shahzad Colony More who was having a blue colour shopper containing charas in his right hand and could be arrested if a raid was conducted upon him. On receipt of this information, raid was conducted, the petitioner was apprehended and charas weighing 3000 grams wrapped in a blue colour polythene bag was recovered.
3. Heard. Record perused.
4. As per FIR, it was Nasir Mehmood, S.I./CIA Staff who along with the other police officials had conducted raid and allegedly recovered three packets containing charas weighing 1000 grams each from the possession of the petitioner, out of which 50 grams charas was separated from each packet for the purpose of chemical analysis whereas the remaining charas weighing 2850 grams was made into a separate parcel for depositing the same in Malkhana. Thereafter, he sent the complaint through Muhammad Rafique C/1308 for registration of case. It may be observed that under subsection (1) of section 156, Cr.P.C. the power to investigate a cognizable offence under above provision has been conferred on any officer incharge of a Police Station having jurisdiction over the local area within the limits of such Police Station, whereas clause (p) of section 4, Cr.P.C. defines "Officer incharge of a police station" as under:- "(p) 'Officer-in-charge of a police-station' includes, when the officer-in-charge of the police station is absent from the station house or unable from illness or other cause to perform his duties, the police officer present at the station house who is next in rank to such officer and is above the rank of constable or, when the Provincial Government so directs, any other police officer so present:"
A perusal of the above provision indicates that only an officer in-charge of the police station having jurisdiction over the local area within the limits of a police station can investigate a cognizable offence or any other person covered by the definition of the officer-in-charge of a police station given in above clause (p) of section 4, Cr.P.C. which in the absence of officer incharge of a police station includes officer-in-charge present at the station house who, is next to the officer incharge of the police station and is above the rank of the constable or when the Provincial Government so directs, any other police officer so present. The above provision does not include C.I.A. personnel, therefore, they have no power to investigate a cognizable offence and the investigation so conducted by Nasir Mehmood, S.I of C.I.A. Staff was illegal. We have fortified our view from the dictum laid down by this Court in "Mahar Ahmad alias Dani v. The State" (PLD 1995 Lahore 606), wherein it has been held as under:- "The members of the CIA Staff are subordinates of the Superintendents of Police of the District which S.P. has the powers of an Officer-in-Charge of a police station in view of the provisions of section 551 of the Cr. P. C. Therefore, the members of the CIA Staff, irrespective of their rank and status, can investigate, cases only when they have been entrusted to them by an Officer-in- Charge of the Police Station to whom they are subordinate i,e, in case of CIA Staff, the S.P. of the District. Therefore, no member of the CIA Staff has any authority or power to investigate a case of their own motion in the absence of such an investigation having been entrusted to him by the S.P. of the District as abovementioned."
5. The Central Intelligence Agency (CIA) is one of the Preventive and Detective Organizations created under Chapter XXI of the Police Rules, 1934. It is, in fact, established in order to assist the Superintendent of Police and his supervising staff in coordinating preventive and detective work of the District Police and in order to act as clearing house for criminal intelligence for the use of investigating officers in the district as envisaged under rule 21.35. Besides specifying its constitution, it has been clearly laid down that its primary function is to assist Station House Officers and their staff. Therefore, in the circumstances of the case, there was absolutely no justification for Nasir Mehmood, S.I/CIA to pre-empt the functions of the area police. Reliance can be placed on "Rahim Bux v. The State" (2001 YLR 948), wherein the learned Sindh High Court, Karachi while dilating upon the cognizance taken by the CIA personnel without any authority has observed as infra:- "The material evidence already collected by C.I.A. personnel is without any authority and the concerned police officer could not rely on the material/evidence already by the C.I.A. personnel as the same was not collected by the police officer during the course of investigation. In the present case as discussed supra, the appellant has been arrested by C.I.A. personnel, Mashirnama of arrest and recovery of Charas have been prepared by them and thereafter accused has been handed over to Police Station Lakhi Ghulam Shah against whom the brother of the present appellant has already complained vide application dated 16.9.1997 addressed to Honourable President of Pakistan and this all appears to be manipulated affair and we reach the irresistible conclusion that the cognizance has been taken by the C.I.A. personnel which is not warranted under the law."
6. It has been repeatedly held not only by this Court but also by the Hon'ble Supreme Court of Pakistan that CIA personnels have no power under section 156 of The Code of Criminal Procedure, 1898 to investigate any cognizable offence. The apex Court in the case of "The State v. Bashir and others" (PLD 1997 SC 408), while taking a very serious view of the alleged illegal practice observed as under:- "It is unfortunate that a Government functionary which is entrusted with the enforcement of law should be guilty of breach of a provision of law. It is high time that efforts should be made to establish the supremacy of law instead of relying upon an illegal practice."
The record reveals that though CIA personnel knew it very well that they were not empowered to investigate this matter, yet, they had done so and in this way deliberately violated the provisions of section 156, Cr.P.C. Although, they had prior information about the offence which was likely to be committed, yet, they had not passed on this information to the concerned police and took upon themselves the task of investigation which, we feel, was not proper. What they had done was in violation of law and was also against the principle of supremacy of law.
7. There is yet another important aspect that despite lapse of more than two months, report of Government Analyst is still awaited, without which, nature of recovered substance cannot be exactly determined. The recovery and search proceedings were also conducted by CIA Staff in violation of section 156 of The Code of Criminal Procedure, 1898. Though this sole fact by itself is not sufficient to shatter the prosecution case but all the above noted discrepancies jointly are sufficient enough to bring the case of the petitioner within the ambit of further inquiry as per contemplation of section 497(2) of The Code of Criminal Procedure, 1898. Mere leveling of allegations of heinous offence is not sufficient to keep the accused behind the gallows. When once accused succeeds to establish that his case calls for further inquiry and probe, then rigours contained in section 51 of CNSA, 1997 would not be attracted and accused cannot be kept behind the bars.
8. The petitioner is first offender having no criminal history. He was arrested on 12th April, 2017 and since then he is behind the bars, awaiting his trial, the conclusion of which is not in sight in near future. The question of prejudice caused to the accused cannot be determined at this stage.
However, the illegality committed by the complainant makes it a fit case for further probe and inquiry.
9. For what has been discussed above, we are thus, inclined to allow this petition and consequently, petitioner Rashid Hussain is admitted to post-arrest bail subject to his furnishing bail bonds in the sum of Rs, 5,00,000/- (Rs, Five lac only) with one surety in the like amount to the satisfaction of learned trial court.