It was during the course of the hearing of Crl. Misc. No. 1880/13-92 which sought bail for one Baqar who stood accused of offences punishable under Arts. 3 and 4 of Prohibition (Enforcement of Hadd) Order of 1979 read with Section 8(14) of the Dangerous Drugs Act of 1930 through F.I.R. No. 94 of 1990 of Police Station Bhai Pheru, that I also wished to examine the record, especially the orders, granting bail to various co-accused of the said Baqar.
2.Having thus requisitioned the relevant record from the learned lower Court, I issued notice to Sajwara, Jafer Ali, Abdul Ghaffar, Bashir, Anwar and Irshad, the accused persons of the above mentioned F.I.R. Who were, however, on bail, to show cause why the bail allowed to them be not re- called.
3. Both these matters i.e. The petition seeking bail for Baqar accused bearing Crl. Misc. No. 1880/B- 92 and the matter of re-call of bail allowed to the above mentioned accused persons bearing Crl.
Misc. No. 2153/CB-92 are being disposed of together through this single order.
4.It had been claimed by Muhammad lqbal Inspector/S.H.O. Of Police Station Bhai Pheru through- the above mentioned F.I.R. No. 94/90 that during that course of interrogation of one Nazir who was a person accused of offences punishable under Articles 3 and 4 of the Prohibition Order of 1979 through F.I.R. No. 93 dated 22-2-1992 of Police Station Bhai Pheru and from whose possession 30 grams of Heroinand a gun had allegedly been recovered, that it came to light that Taj Din and his two brothers, namely, Baqar and Irshad Residents of village Lambay Jageer , had established an Adda for the sale of narcotics behind Ittefaq Cinema of Bhai Pheru where they were indulging in the sale of the said narcotics and that even while the said Nazir accused was making the said statement, even at that time, the said Taj Din, Baqar and 'Irshad were indulging in the said illicit business at the said Adda directly and through their various agents.
5.Lqbal S.H.O. Had further claimed that on receipt of this information he deputed Mukhtar Ahmad H.C. In plain clothes to go and purchase narcotics from the said Adda as a fake customer. It was further alleged that Mukhtar H.C. Accordingly went to the spot where Taj Din accused sold to him 300 grams of opium out of which, 5 grams was sealed separately as a sample. On 1his alleged verification of the information given by the said Nazir accused, a raiding party was organised under the directions of the S.P. Of Kasur and under the supervision of Zulfiqar Ali Shah D.S.P. Pattoki and a raid was accordingly conducted on the aforementioned Dera of Taj DinBaqar and Irshad.
6. As a result of this raid, Taj Din armed with a rifle, Baqar armed with a gun, Irshad armed with a pistol, Ahmad Din, Abdul Ghaffar and Jafer also armed with pistols, Sajwara armed with a rifle, Bashir and Mumtaz armed with guns, Riaz armed with a pistol, ZuIfiqar armed with a revolver, Anwar and Ghulam Mustafa armed with pistols and a number of other persons were found present at the said Dera for the purpose of sale and purchase of narcotics.
7. Having seen the police party, Taj Din, Baqar and Irshad accused de--camped from the place of occurrence. The said Taj Din had left behind Heroin weighing 2 kilograms, opium weighing 10 kilograms and Rs.700 in cash while Baqar and Irshad had left behind 12 kilograms of opium and 15 kilograms of Charas respectively while the raiding party managed to apprehend Ahmed Din, Abdul Ghaffar, Jafer Ali, Sajwara, Bashir, Mumtaz, Riaz, Zulfiqar, Anwar and Ghulam Mustafa along with their respective weapons.
8. It was further alleged that at the time of their arrest, narcotics and arms were recovered from the said apprehended persons as under:-- SAJWARA: CHARAS 3 kilograms, OPIUM 2 kilograms, RIFLE one.
ABDUL GHAFFAR: CHARAS 2 kilograms, OPIUM 2 kilograms, PISTOL one.
JAFER ALI: CHARAS 2 kilograms, OPIUM 2 kilograms, PISTOL one.
BASHIR AHMAD: CHARAS 2 kilograms. 'OPIUM 2 kilograms, GUN one.
MUMTAZAHMAD: CHARAS 4 kilograms, GUN-one.
ZULFIQAR: OPIUM 3 kilograms, REVOLVER one.
RIAZ: CHARAS 5 kilograms, PISTOL one.
AHMAD DIN: CHARAS 2 kilograms, OPIUM 3 kilograms.
ANWAR: .
CHARAS 4 kilograms, PISTOL one.
GHULAM MUSTAFA: CHARAS. 3 kilograms, PISTOL one.
9. Out of the above persons arrested on the spot on 22-2-1990, Jafer, Mumtaz, Ahmad Din, Zulfiqar, Bashir, Sajwara, Riaz and Abdul Ghaffar were admitted to bail on 14-3-1990 i.e. Within about three weeks of their arrest, by a learned Magistrate Section 30 while the same learned Court allowed bail to Anwar accused on 14-6-1990.
10. Taj Din, Baqar and Irashad accused who had managed to escape from the place of occurrence, petitioned the learned Sessions Court for their release on bail before arrest and after having been admitted to interim pre-arrest bail, the record was summoned for 3-3-19% when the said accused persons elected not to enter appearance before the learned A.SJ. And their said petition for pre- arrest bail was, accordingly dismissed.
11. It may be mentioned here that Ghulani Mustafa accused was allowed bail by the above mentioned learned Magistrate on 19-4-1990.
12. In support of Baqar's petition for bail, Mr. M. Bilal Khan, Advocate, argued that the prosecution story regarding the raid and the recoveries in question was a mere fabrication because it was not believable that such a large scale of sale of narcotics could have been going on only two furlongs away from P.S. Bhai Pheru and the local police would not know about it; that a seventy members strong contingent of police had raided the alleged Adda and yet Baqar petitioner and his two brothers could manage to escape from the said place; that no public witness had been associated with the alleged recovery proceedings and the only witnesses available against the petitioner were members of the police force; that the police officer who had allegedly led the raiding party was the one who had himself investigated the case in question; that Baqar petitioner was alleged to have been in possession of only 12 kilograms of opium and the offence alleged against him did not, in any case, fall within the prohibitory clause and that Baqar petitioner was, in the circumstances, entitled to be admitted to bail
13. The fact that the alleged Adda was being operated only at a distance of two furlongs from police station could wen be sufficient to attribute negligence, incompetence or even collusion to the local police but, that by itself was not sufficient to declare that the whole story was a fabrication.
14. It is a fact, by now judicially recognized even by the superior Courts, that members of the public did not offer themselves to become witnesses in such likematters and in the circumstances, no adverse inference can be drawn against the prosecution case only on the ground that no member from the public had come forward to support the said case, especially when it had been repeatedly held that members of the police force were competent witnesses in the eyes of law.
Therefore the present case cannot be held to be doubtful only because no public witness had been associated with the recoveries in question.
15. The conduct of investigation of the case by a police officer who had himself conducted the raid in question was neither illegal nor improper. In any case, whatever had to be recovered had been recovered during the raid itself and no further investigation. Of any substantial nature bad to be conducted thereafter. Consequently, the conduct of investigation by a police officer who had led the raiding party, is hardly a ground to release Baqar petitioner on bail. , 16. . The allegation against Baqar petitioner is not only -of possession of intoxicant but was also of trafficking in narcotics and he, and his two brothers had even been specifically alleged to be using and permitting the use of the premises in their possession for the sale etc., of drugs. Thus, the offences alleged against himtell not only within the purview of Article 4 but also within the mischief of Article 3 of Order 4 of 1979. It may also be mentioned here that the allegation against Baqar petitioner as of possession of more than one kilogram of opium and the offence wits thus punishable with imprisonment for life.
17. The learned counsel had no explanation as to why the raiding party which consisted of such a large number of police officials and which was being supervised by a D.S.P. Should have maliciously picked on Baqar petitioner for falsely accusing him of the offences alleged against him.
18. It has been repeatedly held by me in a number of decisions including The State v. Muh ' ammad Nazir etc., PLD 1991 Lah. 433 that persons accused of and involved in drug trafficking did not deserve any leniency or mercy.
19. It may also be mentioned here that Baqar petitioner had approached the learned Sessions Court for his release on bail and having been admitted to interim pre-arrest bail, did not enter appearance on 3-3-1990 when his said bail petition was dismissed. Thereafter he remained an absconder and surrendered only after seven months of his absconsion i.e. On 26-9-1991, This is another ground which militates against the grant of bail to Baqar petitioner.
20.Consequently, Crl. Misc. No.1880/B-92 praying for the release of Baqar petitioner on bail is dismissed.
21This brings me to the decision of Crl. Misc. No.2153/CB-92 which arises out of a suo motu notice of cancellation of bail allowed to Irshad, Abdul Ghaffar, Sajwara, Jafer Ali, Bashir and Anwar.
22. Defending the bail allowed to Irshad accused, who was a-brother of 'Baqar and Taj Din accused, in addition to the submissions made and noticed above in support of Baqar's bail plea, it was contended that the case of Irshad accused did not fall within Article 3 of the Prohibition Order of 1979; that his alleged absconsion could offer no ground for depriving him of the concession of bail; that he had not been arrested at the spot nor was he present there; that the alleged intoxicant i.e. 15 kilograms of Charas had been falsely planted on him; that since the challan against Irshad accused had already been submitted, the bail allowed to him could not be cancelled and that the reasons which had weighed with this Court in issuing tile notice of cancellation of bail r to Irshad accused, were not factually correct.
23. As has been mentioned Above, it was during the course of hearing of the bail application of Baqar accused that tile matter of grant of bail to accused persons and some of the said accused persons having absconded before and after the grant of bail, had come to my notice and it was thereafter I hat notice was issued to Irshad and others t6 show cause why the bail allowed to them be not re-called.
24. Needless to say that the facts necessitating the issuance of such a notice were only of a prima facie nature and were not a final determination of the facts mentioned in the said notice. Therefore, the grounds mentioned in the said notice 'are not really relevant for the purpose of the final adjudication of the matter in question.
25. A bare perusal of the F.I.R. Would demonstrate that the accusation against Irshad accused was not only of possession of 15 kilograms of Charas but was also of operating an Adda along with his two brothers, namely, Taj Din and Baqar, at which Adda, intoxicants were allegedly sold. Therefore, besides being liable for being in possession of 15 kilograms of Charas which he had, however, left behind while escaping from the said Adda, he is also liable under Arficlc 3 of the Prohibition Order of .1979 for being accused of using and permitting the use of the premises in his possession for sale etc. Of narcotics. It cannot, therefore, be said that the accusations levelled against Irshad accused, which include sale and trafficking of Heroin, Opium and Charas and also of using and permitting the use of the said premises for the said purpose, did not bring Irshad accused within the purview of Article 3 of the said Prohibition Order of 1979.
26. He had allegedly escaped from the place of occurrence on 22-2-1990 and thereafter sought his release on pre-arrest bail and having been admitted to interim bail before arrest, elected not to appear before the learned A.SJ. On 3-3-1990 when the said bail was refused.
27. Therefore, it cannot be said that Irshad accused was not aware or conscious of his implication in the present case.,
28. Despite this ' knowledge, Irshad accused remained an absconder and surrendered only on 13- 7-1(0) i.e. After almost five months of his absconsion.
29. The learned Magistrate Section -30 admitted Irshad accused tobail on the ground that the submissions of his learned counsel that the recovery planted on him was fake; that he was not present when the recovery in question had been effected; that the only recovery witnesses were police employees; that the leader of the raiding party was himself investigating the case in question I and that Irshad accused had been in judicial lock-up for about seven months, had not been controvrtedby the Assistant District Attorney.
30. The learned Magistrate appears to have dealt with this matter in a slipshod manner and he was not at all conscious of the fact that the aflegations I against Irshad accused consisted not only of possession of Charas but also of' operating an Adda and Of trafficking in narcotics.
31. The said learned Court was factually incorrect in holding that Lushad accused had been in custody for about seven months. Th e fact is that he had been in judicial lock-up only for about two months when he was admitted to bail by the said learned Magistrate.
32. As has been held above and in a number of other cases that thequestion that the only recovery witnesses were empl6yees of the Police I I Department or that the aiding Police Officer was himself the 1.0., was ,o I ground for the release of an accused person on a bail in such like cases.
33. The learned Magistrate was also obviously oblivious of the fact that Irshad accused had remained an absconder for about five months before hehad finally surrendered to custody.
34. The learned Assistant Advocate-General has submitted that during I the period of his absconsion and even while being on bail, Irshad accused had again been found involved in the alleged commission of offences punishable under Articles 3 and 4 of the Prohibition Order of 1979 and has referred toF.I.Rs. Nos.364, 365 and 366 dated 20-6-1990 of P.S. Bhai Pheru as also to F.I.R.
No.437 dated 1-7-1990 and F.I.R. No.273 dated 19-2-1992 of the same police station.
35. In this view of the matter, I find that the discretion exercised by the learned Magistrate in admitting Irshad accused to bail was a jurisdiction exercised by him in ignorance of the facts and the circumstances relating to the matter in question.
36. Consequently, the bail allowed to him by the learned Magistrate Section 30 through an order dated 23-9-1990 is re-called.
37. Even the learned counsel for Irshad accused could not demonstrate any malice on the part of the police party to have falsely selected him for false implication in the present case.
38. This brings me to the matter of grant of bail to Sajwara, Bashir, Jafer, Ghaffar and Anwar accused.
39. Anwar accused had been arrested at the spot and besides four. Kilograms of Charas, even aPistol had been recovered from him.
40. He had bee n allowed bail on 14-6-1990 by the learned Magistrate Section 30 when it had been contended on his behalf that the intoxicants in question had been recovered from someone else and had been falsely planted on Mm and when it had been further submitted that his mother was lying on death bed and in support of which sickness of his mother, even a certificate had been produced before the said learned Magistrate. .41. The said certificate which is on record was issued by a Medical Officer of the Rural Health Centre' of Bhai Pheru and which had stated that one Mst. Saira Bibi wife of Malang resident of Bhai Pheru and aged abut 50 years was admitted in the said Health Centre under the disease P.U.0. Vide some registration No.209/RHC dated 28-5-1990.
42. As would be apparent from the above reproduction of the said certificate, it is not clear as to what disease had afflicted the said lady. At least I am not in a position to understand what this disease was nor is the learned counsel in a position to explain the same. How the learned Magistrate understood about this disease and also declared that the lady suffering from the said disease was on death bed, is a mystery not yet resolved.
43. This was according to me, a reckless exercise of power by the learned Magistrate which could not be sustained. It may also be mentioned here that it has been repeatedly held that the provisions of section 497 of the Cr.P.C. Did not make the illness of a near one, a ground for the release of an accused person and the learned lower Courts who are not even possessed with the powers under section 561-A of the Cr.P.C., had no jurisdiction to grant bail to accused persons on such like grounds.
44. There is nothing in the said order which could have substantiated the submissions on behalf of Anwar accused that the intoxicant and the weapon in question which had been recovered from someone else had been falsely planted on him. At least as per the said order, this was a bald and a bare allegation which could not be substantiated even before me.
45. Resultantly, the bail allowed to Anwar accused through an order dated 14-6-1990 . By a learned Magistrate Section 30 is also re-called,
46. Two kilograms of opium and three kilograms of Charas had been recovered from Sajwara accused. Two kilograms of opium and two kilograms of Charas had been recovered from Abdul Ghaffar accused and similar amounts of opium and Charas had been recovered from Jafer accused. Two kilograms of opium and four kilograms of Charas had been recovered from Bashir accused.
47 These four accused persons had been admitted to bail by the said learned Magistrate Section 30 on 14-3-1990 i.e. Within about three weeks of their arrest primarily on the ground that it had allegedly appeared in the local press that the police had recovered a large amount of narcotics from one Iftikhar but the same had been falsely planted on a number of poor persons and that the local police had still not contradicted this press report; that Muhammad Hayat, Boohra and some other residents of Bhai Pheru had sworn affidavits that nothing had been recovered from these accused persons; that no witness from the public had been associated with the alleged recovery and that the raiding police officer had himself conducted the investigation of the case in question.
48. The learned, Magistrate who released these accused persons on bail had obviously not taken into consideration, the fact that besides Charas, even opium had been allegedly recovered from the said accused persons, the quantity of which opium exceeded one kilogram and the offence thus became punishable up to imprisonment for fife.
49. I have already examined and discussed the effect of only police employees being witnesses of the alleged recovery and one of the raiding officers being the 1.0. And needless to repeat that these are no grounds for grant of bail to any accused person.
50. I am surprised that the learned Magistrate had released the, accused persons on bail, inter alia, on the ground that a press report which had appeared in the press and which had claimed false- plantation of narcotics oh some accused persons, had not been contradicted by the local police.
51. The learned Magistrate unjustifiably presumed that the said report had been brought to the notice of the local police and the 1.0. Had thereafter not contradicted the same. In any case, if such a ground was permitted to be made basis of decisions in Courts of law, then the same, to say the least, could lead to judicial anarchy.
52. The order under examination does not indicate as to what were the facts which had persuaded him to hold that the case of the accused persons in question was one of further inquiry and what were the facts which had impressed him for holding that the narcotics in question had been falsely planted on the said accused persons. A bare submission of the learned counsel which had remained unsubstantiated before the learned Magistrate and which remains unsubstantiated even before me, was no round to admit these accused persons to bail.
53. The result is, that the power exercised by the learned Magistrate in grant of bail even to these accused persons, was not a judicious exercise of power. The same is arbitrary and cannot be permitted to be maintained and continued. Therefore, the bail allowed by the learned Magistrate Section 30 to Jafar, Sajwara, Bashir and Abdul Ghaffar through his order dated 14-3-1990 is also re- called.
54. It may be mentioned here that Taj Din accused is stated to be still in custody while Ahmad Din accused is stated to have died. Riaz accused is reported to be undergoing imprisonment after his conviction in some other case of narcotics while Mumtaz and Ghulam Mustafa accused are stated to be absconders and proceedings against them have already been initiated under section 87 of the Code of Criminal Procedure.
55. Before I part with this order, I feel compelled to bring certain matters, which have come to my notice, -on record for necessary action.
56. It is the S.H.O.'s own case, as complainant of F.I.R. No.94/90 of Police Station Bhai Pheru, that large scale sale and trafficking of narcotics was being carried on at the Adda in question which was only two furlongs away from his said police station. The magnitude of this illicit business has also been demonstrated by the said S.H.O. Himself when he claimed through the F.I.R. In question that at least 57 police employees had been drawn from various police stations and even from the Reserve of Police Lines of Kasur to form aaiding party to conduct a raid at the said Adda.
57. It is shocking that this illegal and immoral business was going on at such a large scale at a distance of only two furlongs from the police station but neither the S.H.O. Nor any other police employee of the said police station knew about the same till such time that Nazir accused above mentioned informed them about it.
58. Was it the incompetence of the S.H.O. Or his collusion, is for the competent police officers to decide?
59. A copy of this order shall be sent to the Inspector-General of the Punjab Police who Would look into the matter and then take appropriate action.
60. It also came to my notice from the record that the learned A.S.J. Of Chunian had admitted Taj and Baqar accused abovementioned to interim BAIL AFTER ARREST on 21-12-1991 which was to enureup to 8-1-1992 only on the ground that the mother of these two accused persons had allegedly died.
61. In the first instance, it is evident from the record that the learned IN A.S.J. Never took any steps to confirm this information, as no certificate etc. Is available on the file which could have established the veracity of this information. In any case, it has been repeatedly held that the learned subordinate Courts who are not even possessed of powers under section 561-A. Of the Cr.P.C., have no jurisdiction to grant bail to accused persons on such like alleged grounds and their authority to admit accused persons to bail is restricted strictly to the availability of grounds as mentioned in section the Cr.P.C.
62. A copy of this order shall be sent to the learned A.S.J. Concerned a direction to be careful in future while dealing with matters before Copies of this order shall also be sent to the Hon'ble Inspection Judge Kasur District as also to the learned Sessions Judge of the said district for information.
63. As is evident from the above appreciation of various bail granting orders of the learned Magistrate exercising powers under Section 3 Chunian, the discretion exercised by him in granting the said bail, was judicious at all but was in fact arbitrary, callous and reckless exercise of power
64. A copy of this order shall be sent to the Chief Secretary of Punjab shall place these observations on the service book of the said learned Magistrate (Mehr Akbar Ali).