' The four respondents before me, in pursuance of a suo motu notice for re-call of the pre-arrest and post-arrest bail allowed to them, by Mr. S.M. Elahi, a learned A.S.J. At Lahore, are accused of possession, sale and transportation etc., of 4096 KILOGRAMS (about four Tons) of CHARAS vide F.I.R.
No 258 dated 25-5-1990 of P.S. Nawankot of Lahore.
2. The facts culminating in the said notices are that the S.P. (City) of Lahore had received secret information about the sale and business of narcotics, on a large-scale, in the Nawankot and Iqbal Town areas of Lahore.
3. He deputed Tahir Alam, the S.H.O. Of P.S. Iqbal Town, to look into the matter who then tracked down one Muhammad Saleem, a SHARBAT VENDOR who was caught selling CHARAS in the garb of his SHARBAT vending business and 200 grams of CHARAS was recovered from his REHRI. He was arrested and F.I.R. No,216 was registered at P.S. Iqbal Town on 25-5-1990 in this connection.
4. During the course of his interrogation, this Saleem disclosed that he used to purchase CHARAS, from one Mushtaq Hussain and on being led to his house, the said Mushtaq was arrested and 2 Kilograms of CHARAS was recovered from his possession. Another F.I.R. Bearing No,217 was recorded at P.S. Iqbal Town the same day i.e, on 25-5-1990.
5. This Mushtaq in turn disclosed that his source of supply of CHARAS was one Sabir and then led the police party to the said Sabir's ARA MACHINE on BUND ROAD on reaching where, three persons were found present, one of whom managed to escape but the other two were secured by the raiding party.
6. The ones apprehended at the spot were identified as Sabir and Shaukat and the one who had slipped away was stated to be Basharat.
7. Sabir, led to the recovery of four Kilograms of CHARAS lying in a corner of the room, which was accordingly seized.
8. Shaukat allegedly led to the recovery of forty-six concrete slabs lying in the same premises and each slab had, according to him, 45 Kilograms CHARAS concealed in it. Consequently, 2,070 Kilograms of CHARAS was recovered from these slabs.
9. Thereafter Shaukat led the raiding party to the shop where, on his pointation, the ground was dug which unearthed 20 bags, each containing 75 Kilograms of CHARAS in packets of one Kilogram each.
10. Shaukat also led to the recovery of 522 packets of CHARAS each weighing one Kilogram.
11. The quantity of CHARAS thus recovered at the instance of Shaukat was 4,092 Kilograms and adding 4 Kilograms recovered from the same premises at the instance of Sabir, the total quantity of CHARAS yielded through this raid came to be 4,096 Kilograms which is about Four Tons.
12. Both, Sabir and Shaukat were arrested and an F.I.R. Bearing No,258 was registered at P.S. Nawankot on 25-5-1990 for the alleged commission of offences punishable under Articles 3 and 4 of the Prohibition Order of 1979.
13. After their arrest, Basharat and Shaukat accused desired to be produced before a Magistrate and on being so produced, made statements which were recorded under section 164, Cr.P.C.
14. Shaukat accused admitted the recovery of the above-mentioned quantity of CHARAS but claimed that the same in fact belonged to Seith Nazeer and Kaleem of Garden Town of Lahore.
15. The said statement of Basharat was, however, more revealing. He disclosed:-
(a) that he was the lessee and the occupier of the ARA MACHINE from where the aforementioned quantity of CHARAS had been recovered;
(b) that Sabir Hussain was his employee and was a CHOWKIDAR at the said ARA MACHINE;
(c) that a few days prior to the recovery of the aforementioned CHARAS the aforementioned Nazir had called him to his house in Garden Town, Lahore where Shaukat accused and some others were also present and Seith Nazir had disclosed that trucks carrying their 'MALL' had reached the Ravi Bridge, which 'MALL'. Had to be transported to Karachi which, however, could not be done on account of unfavourable conditions then obtaining in Karachi and asked Basharat to store the said 'MALL' at his ARA MACHINE with a commitment that he would be adequately compensated for the same;
(d) that he got tempted and accepted this offer whereupon this 'MALL' was brought to his ARA MACHINE and after being unloaded, was entrusted to Sabir accused;
(e) that at the time of unloading of this CHARAS, Shaukat, Nazir, Nawaz Khan, Sarwar Khan and Muhammad Hussain were also present at his ARA MACHINE who, however, left after the same had been unloaded;
(f) that four days thereafter, another truck, again carrying CHARAS, was brought to his ARA MACHINE and the same was also unloaded under the supervision of the above-mentioned accused persons and stored there;
(g) that at time of unloading of this truck, one concrete slab got broken whereafter Sabir accused CHOWKIDAR, due to greed, started taking out small quantities of CHARAS from the same and started selling it;
(h) that after this CHARAS had been unearthed, SEITH Nazir got released on interim pre-arrest bail whereafter threats were extended to him that in case he disclosed their names, his daughters would be kidnapped and he would be murdered;
(i) that a brother of the said Nazir's wife was arrested in a CHARAS case in Saudi Arabia and was sentenced to death but the said Nazir had refused to own him whereafter Nazir's wife had warned Basharat etc., that they should not associate themselves with the said Nazir accused because if he could have his brother-in-law killed then he would not spare anyone else either.
16. It thus appears that Seith Nazir, Shaukat, Sarwar (absconder) and Nawaz ' (absconder) were the owners and the operators of the CHARAS in question. Basharat was responsible for providing his premises for its storage whereas Sabir was the CHOWKIDAR of the said premises and was also selling the CHARAS which he could manage, out of the consignment under his guard.
17. Having stood thus accused, Sabir and Shaukat respondents who were arrested on the spot on 25-5-1990, were released on bail through a consolidated order passed on 16-9-1990 (wrongly dated as 15-9-1990) passed by Mr. S.M. Elahi, A.S.J. At Lahore.
18. On the same day i.e. On 16-9-1990, but through a separate order, Seith Nazir accused was admitted to pre-arrest bail. It may, however, be mentioned that the bail-granting order in respect of Sabir and Shaukat was silent about the bail matter of Nazir accused which was being disposed of the same day and the order passed in favour of Nazir made no mention of bail being allowed to Sabir and Shaukat.
19. Basharat accused, who had been arreated after dismissal of his pre-arrest bail on 4-6-1990 was allowed bail on 2-10-1990.
20. The history of the bail matters of these four accused persons is of significance and is being noticed hereunder:-- ' BASHARAT ACCUSED:
(a) 28-5-1990: ' he was admitted to interim pre-arrest bail;
(b) 4-6-1990: ' the pre-arrest bail petition was dismissed through a detailed order;
(c) 21-6-1990 ' petition for bail after arrest was moved;
(d) 25-6-1990 ' through another detailed order, this post-arrest bail petition was also dismissed;
(e) the ratio of the two above-mentioned orders dismissing the pre-arrest and the post-arrest bail petitions was that: 4.092 KILOGRAMS of CHARAS had been recovered from a place in the occupation and possession of Basharat accused; that such a large quantity of CHARAS could not have been planted on the accused persons; that at least 25 officials of the police department were present at the time of raid and it would not be possible to plant such a large quantity of CHARAS in the presence of such a large number of police employees; that such a huge quantity of narcotics could not be meant only for possession and personal consumption and the circumstances did demonstrate that the same was meant for sale, inside and outside the country and consequently the provisions of Article 3 of the Prohibition Order of 1979 were fully attracted; that one Allah Rakha who was the owner of the place of recovery had stated that the premises in question had been given by him on lease to Basharat accused and finally that a co-accused of Basharat, namely, Sabir CHOWKIDAR could not have been indulging in the sale and retention of such a large quantity of CHARAS without the knowledge of his employer i.e. Basharat accused;
(f) 16-9-1990: ' second petition seeking bail after arrest for Basharat accused was moved before the same learned Court who had dismissed the earlier bail before arrest petition and the first bail after arrest petition; 2-10-1990: ' this petition was allowed and Basharat was admitted to bail on the ground that no doubt Basharat accused had made a confession under section 164, Cr.P.C. And had admitted his possession of the premises from where the CHARAS in question had been recovered yet the offence committed by him did not fall within the prohibitory clause as the accusation was only of possession; that the challan had still not been received in Court and finally that the other co- accused of Basharat had already been released on bail and the principle of consistency demanded that he should also be brought at par with his co-accused ' NAZIR ACCUSED:
(a) 7-6-1990: ' petitioned the learned Sessions Court for his release on bail before arrest and was admitted to interim pre-arrest bail;
(b) this petition was adjourned by the learned A.S.J. From time to time, on one pretext or the other, for almost two months and the interim bail was continued for this period;
(c) 15-8-1990: ' this petition was dismissed for non-prosecution;
(d) 28-8-1990: ' he approached this Court through Crl. Misc. No.3218/B-90 and was ordered by my learned brother, Abdul Majid Tiwana, J., not to be arrested till 28-8-1990, to enable him to approach the learned Sessions Court afresh for his release on bail before arrest;
(e) 27-8-1990: ' submitted a fresh petition for release on bail before arrest and was again admitted to interim pre-:arrest bail which was continued till 16-9-1990;
(f) 16-9-1990 ' pre-arrest bail petition was allowed and interim bail already granted was confirmed primarily on the ground: that the case against him had been concocted by the police; that he was not named in the F.I.R.; that there was no direct evidence available against him connecting him with the commission of the offences in question and that the statements of the co-accused, namely, Shaukat and Basharat recorded under section 164, Cr.P.C. Did not have any evidentiary value in view of the provisions of Qanun-e-Shahadat, especially when the same had been recorded in the absence of Nazir.
' SABIR HUSSAIN ACCUSED:
(a) 9-9-1990: ' petitioned for his release on bail after arrest;
(b) 16-9-1990: ' petition allowed through a consolidated order of 16-9-1990 (wrongly dated as 15-9-1990) which also allowed bail to Shaukat accused on the ground that Sabir was only a CHOWKIDAR., that a very small quantity of CHARAS .(only 'four Kilograms') had been recovered at his instance and finally that the premises in question was in the possession of Basharat accused and there was no occasion for Sabir accused to have led to the recovery of four Kilograms of CHARAS: ' SHAUKAT ACCUSED:
(a) 18-6-1990: ' moved the petition for his release on bail after arrest;
(b) 18-7-1990: ' released on interim bail after arrest till 26-7-1990 to enable him to attend the CHELUM of his mother;
(c) 26-7-1990: ' he did not surrender and instead sent a certificate regarding his illness. Matter adjourned.
(d) 30-7-1990: ' a chit was received by the Court that he was still admitted in the hospital. The matter was again adjourned to 7-8-1990 and the accused was directed to submit a proper certificate of his illness and of his admission in the hospital;
(e) 7-8-1990: ' A Deputy District Attorney was present but the case adjourned to 9-8-1990 on the ground that the actual Deputy District Attorney of the Court was on leave;
(1) 9-8-1990: ' the accused was present and the case adjourned to 13-8-1990 and further adjourned to 15-8-1990 and again adjourned to 22-8-1990;
(g) 22-8-1990: ' the accused again fell sick and the case was adjoured to 12-9-1990;
(h) 12-9-1990 ' the D.D.A. Prayed that the interim post-arrest bail had elapsed since long and the accused be taken into custody. Adjourned to 15-9-1990;
(i) 15-9-1990: ' the arguments were heard and case adjourned to 16-9-1990 for orders;
(j) 16-9-1990: ' petition allowed and the interim post-arrest bail was confirmed on the ground: that the premises from where the CHARAS had been recovered was not in his possession; that Basharat had, through an affidavit, disowned his statement made u/s 164, Cr. P.C.; that according to the F.I.R., the CHARAS in question had been recovered at the instance of Shaukat but according to the statement of Basharat accused, Shaukat had been arrested subsequently from his house; that Basharat was the actual occupier of the premises whose bail had been refused and that the involvement of Shaukat was thus open to further inquiry.
21. On receiving information about grant of bail to the persons accused of such a arge quantity of narcotics I summoned the record from the Court of Mr. S.M. Elahi, a learned A.S.J. At Lahore who had allowed these bails.
22. The facts, the circumstances and the manner which had culminated in these orders, as revealed through this record, I thought, required examination, by this Court.
23. Consequently, I issued notices to the four respondents on 6-4-1991, to defend the bails granted to them.
24. Messrs Rafiq Ahmad Bajwa and Shaukat Rafiq Bajwa, Advocates, appeared for Seith Nazir respondent on the first date of hearing but were then superseded by Dr. A. Basit, Advocate.
25. Khawaja Sultan Ahmad and Mian Abdul Quddoos, Advocates, represented Shaukat accused.
26. Mr. Zafar Pasha Chaudhry, Advocate, appeared for Basharat accused whereas Sabir respondent was defended by Malik Abdul Wahid, Advocate.
27. Mr. Zaeem-ul-Farooq Malik, Asstt. A.G. Appeared for the State.
28. As has been noticed above, Seith Nazir accused had once approached this Court also through Crl. Misc. No. 3218/B of 1990 and it was my learned brother, A.M.Tiwana, J., who had disposed of the said matter by allowing ten days time to him to re-petition the learned Sessions Court for his release on pre-arrest bail and directed that the said Nazir accused be not arrested during that period.
29. The question was whether this order came within the purview of Zubair's case PLD 1986 SC 173 necessitating entrustment of the present matter also to the same learned Bench for disposal.
30. All the learned counsel were of the view that as the order in question did not touch upon the merits of the case and as the said petition had not even been allowed to be withdrawn through the said order, the same did not attract the dictum laid down in Zubair's case, especially when his Lordship had done nothing more than merely granting protection to the accused in question to reach the learned Sessions Court.
31. Considering that the views expressed by the learned counsel were not without merit, I decided to continue to deal with the matter.
32. Next, I sought assistance of the learned counsel of the parties on the question, whether I could have validly issued notice to the respondents for the cancellation of bail allowed to them by a learned subordinate Court, on the basis of my own information or knowledge and without the matter having been entrusted to me in due course or the same having come to my notice through inspection etc. Of the subordinate Court concerned or even through some matter pending before me.
33. All the learned counsel, were, once again unanimous in submitting that there was no impediment in my way of issuing a such like notice, in the manner that I had, in pursuance of the information or knowledge in whatever way, it may have reached me.
34. Mr. Zafar Pasha Chaudhry, Advocate, even placed reliance on Mushtaq Ahmad's case PLD 1966 SC 126 and on Gushtasab's case PLD 1956 FC 117 to support this proposition.
35. These two questions having been thus resolved, the matter proceeded on to the factual aspects of the case but it was on 7-5-1991, that Dr. A.Basit, Advocate, perhaps on reconsideration of the latter issue, submitted that a Judge of this Court had jurisdiction to deal only with that matter which had been entrusted to him by the Hon'ble Chief Justice and was possessed of no power to hear and decide a matter not so entrusted.
36, The learned counsel then moved even a formal application bearing Cr1. Misc. No. 396/M of 1991 to further press this issue and even prayed that the question being one of public importance, be referred to a larger Bench preferably a Full Bench, for its resolution.
37. I suspended the hearing on the merits of the case and decided to determine this question before proceeding any further in the matter.
38. In support of the proposition, Dr. A. Basit, Advocate, referred me to various provisions which could be invoked for taking, suo motu, cognizance of the matter in hand and for adjudicating the same, namely, the provisions contained in sections 435, 439, 497 (5) and 561-A, Cr.P.C., and drew my attention to the fact that all these provisions empowered only the High Court and not a Judge of the High Court to act in the matter.
39. The learned counsel then placed before me the provisions of Article 192 of the Constitution and endeavoured to demonstrate that a Judge of a High Court was not the same thing as the High Court because the High Court stood defined as a combination of the Chief Justice and all the Judges of the said Court.
40. The proposition canvassed by the learned counsel, on the strength of these propositions, was that the Judges of the High Court were not possessed of any judicial power exercisable by the'High Court and that it was the entrustment of a case to a Judge by the Chief Justice which clothed such a Judge with the authority to decide that case on behalf of the High Court and further that in the absence of such an entrustment, exercise of any jurisdiction, vesting in the High Court, by any Judge or any Bench of Judges, was CORAM NON JUDICE. The learned counsel was also of the view that this mode of conferment of judicial power on a Judge of the High Court by the Chief Justice, to deal with a particular case, was envisaged and authorised by the Rules and Orders of the Lahore High Court.
41. When called upon to quote the Rules which so provide, the learned counsel could do no better than to refer to Rules 2 and 3 of Chapter 3-A of Volume V of the Rules and Orders of our Court.
These two Rules are reproduced below for ready reference:-- "2. The Judges will sit singly or in Benches of two or more Judges in accordance with a Roster to be prepared monthly by the Deputy Registrar with the approval of the Chief Justice.
3. Plaints, appeals, applications and petitions for a preliminary hearing will be distributed by the Deputy Registrar two days previously. The distribution lists will be initialled by the Deputy Registrar and no change in that will be made without his authorization and initials. A copy of the list will be supplied to the Judges' Readers and to the Bar Room, and the Judges' Readers will bring to the notice of the Judges and the Deputy Registrar any alterations that appear unauthorized."
42. A bare perusal of these two Rules would demonstrate, :say, that it is not the Chief Justice who assigns cases to various Judges or Benches of Judges for disposal but it is the Deputy Registrar of the Court who performs this function and secondly that distribution of cases is merely a ministrial job entrusted by the Court to its Deputy Registrar and is far from a jurisdiction conferring act.
43. If the submissions of the learned counsel, that it is the entrustment of a case to a Judge which clothes him with authority to decide that case, is taken seriously then the result would be that what to talk of the Judges, even the Chief Justice himself would be at the mercy of the Deputy Registrar awaiting to catch his eye for allocation of cases and the consequent conferment of jurisdiction on him by the Deputy Registrar to decide cases on behalf of the High Court.
44. This contention of the learned counsel appears to have been based on mere impressions which impressions are factually incorrect and legally untenable.
45. The source of judicial power of a Judge of the High Court, as declared by the Supreme Court, is clause 26 of the Letters Patent which invests each Judge of the High Court with all those powers which vest in the High Court under the Constitution or the Law.
46. The Rules and Orders of the High Court, which are now in force by virtue of Article 202 of the Constitution, are mere rules of business regulating the practice and the procedure of the High Court and laying down the manner in which these powers have to be exercised. These Rules do not and in fact cannot confer or take away any of the powers which stand vested in the Judges or even add anything to or substract anything from these powers.
47. The submissions made by Dr. A. Basit, Advocate, gave me the impression that he was confusing our Constitutional and legal scheme regarding the vesting and exercise of Judicial Powers with the scheme of the vesting and exercise of Executive Powers, not realizing that the two were absolutely different.
48. A bare persual of Articles 90 and 99 in case of the Federation and Articles 129 and 139, of our Constitution, in case of the Provinces, would reveal that the members or the officers of the Executive do not have any inherent, constitutional or legal, authority to exercise Executive Power.
The same vests in the President and the Governor, as the case may be, who then have power to authorise, the officers subordinate to them, to exercise the powers allocated to them according to the Constitution, the law and the Rules.
49. But Articles 176 and 191 in case of the Supreme Court and Articles 192 and 202 in case of the High Courts would demonstrate that the scheme envisaged by the Constitution for discharge of Judicial functions is not similar but is in fact totally different from the scheme relating to the Executive authority.
50. Having thus examined all the Constitutional and legal provisions as also the Rules, I find that being Judge of the High Court, I have the jurisdiction to exercise all the powers which are exercisable by the High Court and which includes the powers conferred on the High Court by sections 435, 439, 497 (5) and 561-A of the Code of Criminal Procedure.
51. Since there is no provision in the Rules and Orders of the High Court prescribing the manner in which a Judge has to exercise the SUO MOTU jurisdiction vesting in the High Court, therefore, I am of the considered opinion that there is no clog on my power to deal with such a matter without the same having been formally entrusted to me and I hold accordingly.
52. In reaching this conclusion, I am guided by Muhammad Ashfaq v. The State PLD 1973 SC 368, Mushtaq Ahmad v The State PLD 1966 SC 126 and Shmas-ud-Din v. Capt. Gauhar Ayab PLD 1965 SC 496.
53. I may mention here that while looking for the earlier cases decided on the above subject, I also came across a judgment from Indian jurisdiction reported as State v. Devi Dayal (AIR 1959 All. 421) which laid down that no judge of the High Court could deal with a case unless the same had been placed before him for orders either by the Chief Justice or in accordance with his directions and that any order passed by a Judge, in a case not so placed before him, was an order without jurisdiction.
54. Having examined this judgment in the light of the law relating to the Lahore High Court and in view of the above-referred judgments of our Supreme Court, I state with respect that Devi Dayal's case of Allahabad High Court does not lay down the correct law on the issue under examination.
55. And before I part with this issue, I may also add that despite a prayer made by Dr. A. Basit, Advocate, I did not consider it necessary to refer this question to a larger Bench essentially because guidance was available to me, for the resolution of this problem,. From the Supreme Court, through the above-refer red judgments.
50. On the merits of the case, in defence of the pre-arrest bail allowed to Nazir accused, Dr. A. Basit, Advocate, submitted that the said accused was a very respectable citizen of the country and after insisting on disclosing the riches acquired by him, the learned counsel stated that Nazir accused had a palatial bungalow on the Canal Bank in Garden Town, Lahore; had more than one plazas/buildings and a number of shops in Liberty Market of. Lahore; had also owned ten squares of land on G.T. Road in Muridkey and that besides these properties, he also had various other trade and business interests to his credit.
57. The learned counsel added that acquisition of this huge wealth which, on one hand, had granted respectability and status to Nazir accused, had also generated widespread jealousy towards him and it was on account of this jealousy that the false involvement of Nazir accused had been maliciously manoeuvred by the interested persons, in the present case.
58. The learned counsel further argued that Nazir accused was not named in the F.I.R.; that not even an iota of CHARAS had been recovered either from his possession or at his instance and in fact he was not even present when the alleged recovery of the CHARAS in question had been effected; that there was no evidence available on record to prove the possession or the sale of the CHARAS in question by Nazir accused; that the statements of Basharat and Shaukat accused allegedly recorded under section 164, Cr. P.C. Connecting Nazir accused with the possession, sale and transportation of the CHARAS in question, was a clumsy attempt on the part of the local police at fabricating evidence to victimize and harass him; that in any case, the statement of Shaukat accused made under section 164, Cr. P.C. Was exculpatory and could not be used against Nazir accused and that of Basharat had been recorded without any caution having been tendered to him as required by section 164, Cr. P.C. Which statement, in any case, had been disowned by Basharat accused through an affidavit submitted by him and that these two statements under section 164, Cr. P.C. Were thus of no evidentiary value; that the offences alleged against the petitioner did not fall within the prohibitory clause of section 497 (1), Cr. P.C. And that in the circumstances, Nazir accused had been justifiably admitted to pre-arrest bail by the learned A.S.J.
59. The learned counsel also contended that the requirements for re-call of a bail allowed to an accused persons were much more stringent than the considerations for mere refusal of bail and that the pre-arrest bail allowed to Nazir accused, thus, did not warrant any interference by this Court.
60. Khwaja Sultan Ahmad .Advocate, defending Shaukat's bail, submitted that Shaukat accused had been released on bail after arrest and his case, to that extent, was distinguishable from the case of Nazir accused; that the CHARAS allegedly recovered at his instance, had been falsely planted on him; that the accusations levelled against him constituted only an offence punishable under Article 4 of the Order which was bailable; that the statement allegedly made by him under section 164, Cr.P.C. Was execulpatory; that the statement of Basharat recorded under section 164, Cr.P.C. Contradicted the allegations contained in the F.I.R. And finally that he had justifiably been admitted to bail by the learned A.S.J.
61. Mr. Zafar Pasha Chaudhry, Advocate, representing Basharat accused, argued that the said accused had retracted the confession/statement made by him under section 164, Cr.P.C.; that no quantity of CHARAS in question had been recovered at his instance or from his possession; that being a mere lessee of the premises in question was not sufficient to connect this accused with the offences in question; that even otherwise, the allegations levelled did not take his case beyond Article 4 of the Order which was a bailable offence; that in any case even the offence under Article 3 did not fall within the prohibitory clause of section 497 (1), Cr. P.C. And that in the circumstances, no exception could be taken to the release of the said accused person on bail by the learned A.S.J.
62. Malik Abdul Wahid, Advocate, arguing for Sabir accused adopted the submissions made on behalf of his co-accused but added that Sabir accused was a poor man who was only a CHOWKIDAR of the premises in question and further that the alleged recovery in question had not been witnessed by any public witness.
63. Mr. Zaeem-ul-Farooq Malik, Asstt. A.-G., appeared for the State. He did not defend the bails allowed to the accused persons and in fact pleaded that the same deserved to be re-called.
64. Commenting upon the huge wealth amassed by Nazir accused, the learned Asstt. A.-G.
Submitted that this aspect of the case had been thoroughly probed by the I.O. And it had transpired that Nazir accused and his brother originally owned only about seven acres of land in a village in Sialkot but withing years the said accused had become a multi-millionaire. He added that on his known and declared business in Pakistan, prior to his recently acquired wealth, Nazir accused never paid more than 4/5 thousand rupees as Income-tax and regarding his alleged business in Saudi Arabia, the learned Asstt. A.-G. Stated that Nazir accused could not show any remittances from abroad to Pakistan out of his earnings from any such business in Saudi Arabia.
65. The learned Asstt. A.-G. Thus argued that Nazir accused has no explanation about the source through which he could validly justify the acquisition of property worth millions of rupees within the last one decade.
66. According to the learned Asstt. A.-G., such a person, without any declared, known or ostensible means of income, is not a respectable person but is a person with dubious character and antecedents who was viewed, by our law, with utmost suspicion. Referring to the provisions of sections 55 and 110 of the Cr. P.C., he added that the law expected such-like persons to be arrested, proceeded against and bound down in order to protect the society from the threat that they pose to it.
67. The learned Asstt. A.-G. Contended that such a wealth of Nazir accused, what to talk of granting him respectability, was in fact a very strong circumstance indicating his involvement in some surreptitious business such as is the one alleged against him.
68. Replying to the claim of all the four accused-respondents, including Nazir accused, that they had been falsely and maliciously involved in the case in hand, the learned Asstt. A.-G. Argued that except a mere bald and vague illegation of malice, the accused persons had not been able to demonstrate any Cason why they should have been falsely involved in this case.
69. Submitted that within a few days of the registration of the case in question, the investigation had been withdrawn, at the instance of the accused persons, from the local S.H.O. And had been entrusted to the S.P. Of Range Crimes and that none of these accused persons ever raised even their little fingers about the impartiality or the integrity of this S.P., either during or after the investigation, or even during the course of the present proceedings and that it was his S.P. Who had vouched for the genuineness of the recovery of the CHARAS in question and-of the accusations levelled against all the four respondents.
70. Added that after the release of the respondents on bail, including the are-arrest bail allowed to Nazir, the allegedly malicious and hostile police never moved for the cancellation of these bails and in fact they even put the challan of his case in cold storage and never submitted the same before any Court eversince the completion of investigation about ten months ago till the issuance of the present notices by this Court.
71. This co-operative, kind and soft conduct of the police, according to the learned Asstt. A.-G., was in itself sufficient to controvert the respondents' claim that the police ever nourished any grudge, malice or hostility towards them.
72. The learned Asstt. A.-G. Next submitted that in case object of the police, has claimed by Nazir accused, was only to victimize him, then the police did not have to undertake such a complicated and marathon exercise of fabricating the F.I.R. Bearing No. 216/90 above-mentioned by falsely implicating an innocent Saleem; then concocting another false F.I.R. No.217/90 aforementioned and Arresting. Mushtaq; thereafter coining another false story of raiding the ARA MACHINE in occupation of Basharat and then finally procuring false statements of Basharat and Shaukat to ultimately lay their hands on Nazir accused when this mission could have been very easily and perhaps more effectively accomplished by fabricating just one F.I.R. And nominating Nazir therein.
73. Added that like-wise, the police did not have to procure four tones of CHARAS. To have it concealed in expensive concrete slabs and then to plant it falsely on the accused persons including Nazir and to have done all this only to expose Nazir to a maximum penalty of two years' imprisonment when planting mere eleven grams of HEROIN on Nazir could have involved him in an offence punishable with life imprisonment.
74. Contended that the above analysis of the defence plea was itself sufficient to demonstrate its absurdity.
75. Refuting the submission that the case against the respondents was only one regarding possession of CHARAS which being punishable only with imprisonment for two years was bailable, the learned Asstt. A.-G. Submitted that the argument was based on incorrect legal and factual premises.
76. He referred to the F.I.R., the statements recorded under sections 161 and 164 of the Cr. P.C. And the other material available on record and submitted that so far as Sabir accused was concerned, there were clear accusations that he had been indulging in the sale of the CHARAS in question and thus his case fell within the ambit of the provisions of Article 3 of the Order.
77. Relying upon the same material, the learned Asstt. A.-G. Contended that Basharat accused was the occupier of the premises which, within his knowledge and with his consent, were being allowed to be used for sale etc., of the intoxicant in question and thus the provisions of Article 3 were attracted even in his case.
78. He further submitted that there were unambiguous allegations available on record that the CHARAS in question belonged to Nazir accused and that Nazir and Shaukat accused were engaged in the business of sale, transportation and trafficking of intoxicants.
79. The learned Asstt. A.-G. Drew my attention to those parts of the record where it had been alleged that the CHARAS in question had been brought into Lahore from outside by Nazir etc., in trucks; that Nazir and Shaukat accused were amongst those who had got the consignment unloaded at the ARA MACHINE and that the said consignment was being transported to Karachi but had been stored in Lahore, only in transit, on account of the disturbed conditions in Karachi.
80. In addition to the allegations of actual transportation of the CHARAS in question, regarding the allegation of having got the same unloaded at the ARA MACHINE, the learned Asstt. A.-G. Submitted that even loading and unloading of goods was included in 'transportation'. Reliance, by him, was placed on Junab Gul and another v. The State [1977 P. Cr. L.J. 328 (2)].
81. Commenting upon the significance of making possession of CHARAS an offence punishable only with two years' imprisonment and the command to punish the one who indulges in manufacture, sale and trafficking etc. Of the same with a more severe penalty, the learned Asstt.
A.-G. Contended that Article 4 had to be interpreted to include only those cases where an intoxicant was being .Possessed only for personal consumption and not for commercial purposes.
82. He submitted that, in addition to specific allegations of sale and transportation etc., of the CHARAS in question, the huge quantity in which the same was possessed and the fact that it lay concealed in concrete slabs, were strong circumstances to establish that the intoxicant in question was not meant to be retained by the accused persons, only for the sake of possession or personal consumption but that the same was meant for sale and transportation etc.
83. The learned Asstt. A.-G. Thus argued that the case of all the four respondents fell squarely within the purview of Article 3 of the order also and it could not be said that the accusations against these accused persons constituted only a bailable offence.
84. He contended that accused persons could not be admitted to bail only because the recovery in question had not been witnessed by the members of the public.
85. Likewise he also submitted that the mere fact that the offence alleged did not fall within the prohibitory clause did not entitle the accused persons to bail, as of right. Relying upon Muhammad Aslam alias Bhola v. The State (1976 P.Cr.L.J 388), the learned Asstt. A.-G. Argued that persons accused of the commission of offences against the State or the society at large did not deserve any sympathy and could not be admitted to bail.
86. Answering the objections raised to the statements of Basharat and Shaukat accused recorded under section 164, Cr. P.C., the learned Asstt. A.-G. Contended that the same was a perfectly valid material which could be taken into consideration for bail purposes and relying upon Ghulam Qadir v. The State (PLD 1960 S.C. 254), submitted that even exculpatory statements could be taken into consideration.
87. The learned Assistant Advocate-General took strong exception to the manner in which the bail granting order, under examination, had been passed and argued that the same lacked propriety and could not be sustained even on this ground.
88. This then concludes the facts and the background leading to the respondents' involvement in the present case; the reason why they are presently before this Court and finally the contentions of the learned counsel, for and against the sustenance of the bail allowed to them.
89. The submissions, above-noticed, are a manifestation of the hard work put in by all the learned counsel from both the sides, especially, Dr. A. Basit, Advocate and Mr. Zaeemul Farooq Malik, the learned Assistant Advocate-General. Justice to their efforts demands an equally elaborate discussion and findings of these submissions but the thought that the matter in question is still with the investigating agency and the report envisaged by section 173, Cr. P.C. Is yet to be put in; that the concerned learned Magistrate has yet to apply his mind to the same and finally that in a trial which may follow, the learned trial Court also has still to determine the questions raised, restrain me from entering into an arena which might prejudice any proceedings which are yet to follow.
90. Suffice it to say, that the wrongs, noticed above, in detail, through which the local police got led to the present respondents; the huge quantity of CHARAS worth millions of rupees, unearthed as a result thereof and the same having been found lying concealed iii concrete slabs, rules out the possibility of false plantation of this intoxicant on the respondents or their malicious involvement in the present case.
91. These very facts further suggest that the narcotics in question was meant not only for pure innocent possession or personal consumption by the respondents, but for sale, transportation and trafficking etc. Which circumstances, coupled with the actual and unambiguous allegations of the respondents' involvement in sale, transportation and trafficking of the CHARAS in question, bring all the accused persons within the ambit of not only of the provision of Article 4 but also within the purview of Article 3 of Order 4 of 1979.
92. Thus it cannot be said, at least for the present, that the accused respondents stand accused only of bailable offences.
93. It is true that even the offence punishable under Article 3 of the said Order is not punishable beyond five years' imprisonment and is thus an offence, not falling within the prohibition contained in section 497 (1) of the Code of Criminal Procedure. But that by itself is not sufficient, to entitle the persons accused of such offences, to claim bail, as of right.
94. The offences which are not categorised as 'bailable offences' continue to remain 'non-bailable' even if they stand outside the prohibitory clause of section 497 (1), Cr.P.C. With the only concession to the persons accused of such like offences that the Courts of law are not prohibited from releasing them on bail unlike the case of persons accused of offences falling within the mischief of the said prohibitory clause.
95. Although the Superior Courts have been of the view that in cases of persons accused of offences punishable with less than ten years' imprisonment, the concerned Courts should ordinarily lean towards grant of bail to them but it should never be taken to mean that the persons accused of such like offences could claim bail as of right or that the Courts should release them on bail as a matter of mere routine.
96. The law creates a distinction between, grant of bail in bailable offences and the grant of bail in non-bailable offences not falling within the prohibitory clause. This distinction has to be honoured by the Courts of law and cannot be set at naught.
97. Therefore when, an accused person not hit by the said prohibition, seeks bail, the Courts are not expected to act as mere rubber stamps and to mechanically release such an accused person on bail.
98. The concerned Court is, in fact, required to apply its judicial mind to the gravity of the offence allegedly committed; the circumstances which led to the commission of such an offence; the damage consequently caused or the effects likely to be cast on the individuals or the society at large; the status of the accused person; his state of mind as depicted by the nature of the crime committed and the manner of the commission of the same; the past conduct of the accused person; the possibility of the absconsion of the accused and the possibility of his repeating the offence or the apprehension of his tampering with the evidence and, thereafter, to exercise the discretion vesting in it in accordance with the principles of equity, the dictates of morality and the other accepted norms governing us all.
99. Exercise of such a discretion may be illustrated by the example of a person who is accused of having caused SHAJJAH-I-MUDIHAH to a person who had teased his sister and of another person who stands accused of having inflicted a similar injury on the person of his mother who had refused to give him money for gambling purposes.
100. Both are hurts of the same type envisaged by the newly-added section 337-A (ii) of the P.P.C.
Both are punishable with less than ten years' imprisonment and thus outside the prohibition under examination. But the reaction of any man of reasonable prudence towards these two accused persons would be different and likewise while a Court may choose to exercise its discretion in the case of the former but might refuse the same relief to the latter.
101. The case in hand is one where the persons accused are alleged to be indulging in sale and trafficking etc. Of narcotics, on a large scale.
102. Needless to say that persons who are accused of being responsible for spreading this deadly poison in the streets of not only this country but even abroad, are the enemies and the destroyers of our entire race. They are the ones who have put not only our lives but even the lives of our children and the generations to come, at stake. It is only people who have no conscience, no values and no scruples who can indulge in such like acts.
103. And then the margin of profit and the generation of wealth in this dastardly 'BUSINESS' is so great that the operators of this game, lavishly and generously, throw away big chunks of bate and crumbs to tempt and to anaesthetize the watch dogs in order to ensure a smooth and uninterrupted running for their 'BUSINESS'.
104. The result thus is that the entire moral fabric of the society gets vulnerably exposed to erosion of the worst kind, not only through intoxication by the narcotics but also through corruption, both moral and financial which, tends to turn human beings into vultures.
105. These drugs are the killers of individuals, the destroyers of families and the annihilators of societies and the persons involved in their manufacture, sale and transportation etc. Cannot evoke sympathies of any normal being.
106. If the nature of the offence committed shocks a conscience, then any person against whom there appear reasonable grounds for his involvement with such a crime become disentitled to any discretionary relief.
107. Consequently, to say that a person accused of trafficking etc. Of narcotics deserves to be admitted to bail only because the offence in question does not fall within the prohibitory clause of section 497 (1), Cr.P.C., is a proposition which cannot be sustained.
108. As has been mentioned above, there is ample material available on record to connect the respondents with the offences alleged against them. This material has been noticed above and need not be reproduced.
109. The members of the police force have always been accepted as competent witnesses and the Courts have always taken notice of the dirth of civic sense in our people and their reluctance to offer themselves as witnesses in criminal cases.
110. Therefore, no exception, at least for the present, can be taken to the prosecution case, only on account of non-association of public witnesses or citing only the police officials as witnesses to the alleged recovery, the effect of which can be considered only at the trial when the alleged witnesses have entered the dock.
111. Likewise, the exercise undertaken for deciding grant or refusal of bail are not the proceedings where only admissible evidence could be validly taken into consideration or where the evidentiary value of the evidence could be determined.
112. Therefore, the submissions of the learned Advocates for the accused persons, that Basharat's statement recorded under section 164, Cr.P.C. Which allegedly carried no caution to him, before recording the same, or that the said statement had since been retracted or even that the statement so made by Shaukat was exculpatory, are matters, the consequences of which can be determined only at the trial. Suffice it to say that at least for the present, these statements recorded by a Magistrate are on no weaker footing than the statements recorded by a police official under section 161, Cr.P.C. And thus offer a material which could be validly taken into consideraion for a decision on bail matters.
113. Having thus examined the material available on record, I am of the opinion that in view of the availability of the said material with the prosecution, it is not possible to hold, at least for the present, that the accusations levelled against the accused-respondents were without substance or foundation.
114, Consequently, the respondents could not have been admitted to bail on the ground that their alleged involvement in the commission of the offences in question was doubtful nor were they entitled to be released on bail only because the case against them did not fall within the prohibitory clause of section 497(1), Cr.P.C. Because the accusations levelled against them disentitled them to any relief in equity.
115. This also leads me to the irresistible inference that the exercise of discretion by the learned A.S.J. Was based on gross misconception of the material available on record and of the principle regulating the exercise of such a discretion.
116. Needless to mention that Nazir respondent had been admitted to pre-arrest bail in the absence of anything, even to suggest, that his involvement in the case in question had been motivated by malice or bad-faith, which had rendered the exercise of discretion in his favour a further arbitrary and whimsical exercise of power by the learned Court.
117. Besides the exercise of jurisdiction in favour of the respondent being factually ill-founded and legally untenable, the manner in which the said power had been exercised is also open to serious exception.
118. As has been noticed in para. 20 supra, the pre-arrest and then the post-arrest bail sought by Basharat accused had been refused by the learned A.S.J. On the 4th and the 25th of June, 1990 and that also through detailed and well-reasoned orders.
119. But then the tables suddenly turned on 2-10-1990 and the grounds which had earlier appeared, to the same learned A.S.J., as worthless, now became worthy and creditable and the learned Presiding Officer also felt compelled to grant bail to the said accused on the principle of consistency as in the meantime, the learned A.S.J. Had released the co-accused of the said Basharat on bail.
120. It is unfortunate that the learned A.S.J. Got reminded of this principle of consistency only to allow bail to Basharat accused and had somehow remained oblivious of the said principle when the bail matters of his co-accused had come up before him on 15-9-1990 and 16-9-1990 after he had already, twice dismissed, the bail pleas of Basharat accused on 4-6-1990 and 25-6-1990.
121. The treatment meted out to Shaukat accused by the learned A.S.J. In his matter of bail is also appalling.
122. He petitioned the learned Court for his release on bail after his arrest on 18-6-1990 and was admitted to interim post-arrest bail on 18-7-1990 only to enable him to attend the Chelum of his mother.
123. In the first place, it may be mentioned here that no power exists, at least with the subordinate Courts who are not possessed even of any inherent powers under section 561-A, Cr.P.C. To release an accused person on bail on any ground other than the ones mentioned in section 497, Cr.P.C.
124. And secondly, it appears from the record that the learned Court took no steps even to verify the death of the mother of Shaukat accused because nothing was placed on record in support of the submission that the mother of this accused had in fact died.
125. However, this interim post-arrest bail was to enure only upto 26-7-1990 but I am shocked to find that .Shaukat accused did not surrender himself to custody on the said date nor did the learned Court ask him to so surrender and instead the learned A.S.J. Continued to adjourn the matter in question for almost two months without taking the accused back into custody, in complete disregard of even his own order.
126. Similar was the position of the bail matter of Nazir accused who secured interim pre-arrest bail on 7-6-1990 and having enjoyed the said privilege for more than two months, finally permitted his petition to be dismissed for non-prosecution on 15-8-1990.
127. The learned A.S.J. Admitted him to fresh interim pre-arrest bail on 27-8-1990 and continued the said concession till 16-9-1990 when the interim pre-arrest bail was finally confirmed.
128. This was thus a callous and reckless exercise of power by the learned A.S.J.
129. The least that can be said about such a manner of exercise of jurisdiction is that the same was devoid of propriety, fairness and justice.
130. Consequently, the bails under examination which were allowed to the respondents by the learned A.S.J. Cannot be sustained either on the facts relating to the case or on the law governing the subject or even on the considerations of propriety and justice.
131. The result is that the only course left open for me, in the circumstances, is to recall the bails allowed to the respondents through orders dated 15-5-1990 and 27-5-1990 passed by the learned A.S.J. Of Lahore and it is ordered accordingly.
132. My observations above recorded with respect to the exercise of jurisdiction by the learned A.S.J.
(Mr. S.M. Elahi) of Lahore shall be placed on his service book and a copy of this order shall also be transmitted to him for his information.
133. Another copy of this order shall be placed before my Lord, the Chief Justice for his Lordship's information and for such action as his Lordship may consider appropriate in the above circumstances.
134. Criminal Miscellaneous No.1326/CB of 1991 stands disposed of.
135. But before I part with this order, I must observe that the detailed appreciation of the facts and the record of this case, as above, which has made this order embarrassingly voluminous and even delayed, became indispensable because of the lengthy arguments addressed by all the learned counsel which spread over a number of days but it is clarified that whatever has been noticed or found through this order is only a tentative assessment meant only for the present bail matter and should not be taken as a final determination of facts.
136. The record received from the lower Court shall be returned forthwith.
137. Mr. Ghulam Rasool, the then S.P. Of Range Crimes who had investigated his case and who now stands retired from service attended this Court from 4th to 3th of May, 1991 and then from 11th to 15th of May, 1991.
138. The Government shall arrange payment of the travelling and daily allowances to the said officer, as per the rules.