' By this consolidated Order 1 intend to dispose of Criminal Bail Applications Nso.465 of 2000, 474 of 2000, 500 of 2000 and 506 of 2000 in a case being Crime F.I.R. No,57 of 2000, registered with Police Station A-Section, Sukkur, under sections 465, 468 and 471/34, P.P.C., Bail applications on behalf of the applicants were moved in the Court of Sessions Judge, Sukkur, which were dismissed by Incharge Sessions Judge, Sukkur, vide his order, dated 21-8-2000.
2. The facts germane to the prosecution case are that on 5-5-2000 at about 11-00 a.m., complainant SIP/S.H.O. Tahir Hussain Mughal of Police Station A-Section, Sukkur, set the law into motion by filing F.I.R.The details whereof show that:-- "Whereas secret information has come to the notice of the undersigned that the following accused persons by furnishing false information got false passport prepared from Passport Office, Sukkur, kidnapped the children shown against their names, to smuggle them out of Pakistan in order to subject them to the unnatural lust of others or knowing it to be likely that children will be so subjected.
' The said children were bought, hired or otherwise their possession was obtained by them with intent to imply or use them for the purpose of prostitution, illicit intercourse with any person or for any unlawful or immoral purpose or knowing it to be likely that such children will be employed or used for such purpose.
' That the said abducted children shall be sold, let to hire or otherwise disposed of to any person with intent that such children shall be employed or used for unlawful and immoral purpose.
S.No.Names of accused with N.I.C.
Nos.Addresses Names of children
1. Siraj Ahmed s/o Muhammad Ali NIC 403-72-292883Village Khair Muhammad Taluka Kandh Kot, Distt.
Jaccobabad.
2. Taj Khatoon w/o Siraj Ahmed NIC 403-72-292884-do- Muzamil M. Sajid, Sajid Azhar
3. Qasim Ali s/o Allah Dito NIC 417-70-220206Deb Gurkano PO Khenbro Talk. Ubaro
4. Safina w/o Qasim. NIC 413-71- 220207-do- Mushtaq Ali Liaqat Ali
5. Allah Rakhio s/o Ali Ahmed NIC 439-66-317288Town PO Piryaloi, Talk. & District KhP.
6. Naseem Bibi w/o Allah Rakhio NIC 439-67-317289-do- M. Ashraf Imran Ali
7. Ghulam Hyder s/o Ghulam Hassan NP H-08187Chak 47, Rajanpur, Rahimyar KhanApprehended at Dubai Airport on10-5-2000
8. M. Arshad s/o- M. Din NIC 442- 60-013160Goath M.
Yaqub PO Sithraja, Talk.
Thari Mirwah.
Distt.
Khairpur
9. Kaneez Bibi w/o M. Ashraf NIC 442-66-162205-do- Two children
10. Sher Hassan S.No.75D/15D Mandar Road, Quetta .
11. Bhutto Khan s/o Jumo Khan Taluka Kashmore, Distt.
Jacobabad
12. Naseem w/o Bhutto Khan -do- Two children ' The above accused persons except accused No,7 have been arrested at Sheraz Airport (Iran) on 10-5-2000 while trying to smuggle abovenamed Pakistani children to Sharjah (UAE) for the above purpose. The above accused in collusion with one another have committed the aforesaid offence.
(Sd.)
S.H.O. PS A-Section, Sukkur."
3. On 23-6-2000, I.O./S.H.O. Tahir Hussain Mughal of Police Station, A-Section, Sukkur recorded 161, Cr.P.C. Statements of Head Constable Muhammad Yousuf (Buckle 1505) and Police Constable Abdul. Sattar (Buckle 933) of A-Section Police Station, Sukkur. On 24-6-2000 all the four applicants were arrested by the I.O. Alongwith their belongings in presence of the police Mashirs, namely P.C.
Muhabat Ali (Buckel 323) and P.C. Muhammad Ali Mali (Buckel 876) of Police Station A-Section, Sukkur. Complainant also recorded statements of the applicants under section 161, Cr.P.C. Including co-accused and after usual investigation the accused were sent up to stand trial in the Court of learned Sessions Judge, Sukkur.
4. I have heard the learned counsel for the parties and perused the material available on record.
5. It has been argued by the learned counsel for the applicants that names of the applicants do not transpire in the F.I.R. Excepting Ghulam Hyder son of Ghulam Hassan. Bare reading of F.I.R.
Shows that neither date nor time of incident is mentioned therein. There is absolutely no direct evidence of kidnapping of victims against the applicants. It has been further urged that there is no recovery of the victim boys from the applicants. The applicants were arrested after 30 days of registration of the F.I.R. When nothing, incriminating was secured from their possession excepting some belongings from them. It has been further urged that immediately after arrest they were neither put to any identification test before any Magistrate nor the I.O. Took pains to produce the said accused before any Magistrate for recording their judicial confession. In the alternate they were also not produced before any respectable person for recording extra-judicial confession. The only piece of evidence, which the prosecution proposes to rely upon, is the statements of the accused recorded under section 161, Cr.P.C. Alongwith the statements of co-accused, which are inadmissible under Article 39 of the Qanun-e-Shahadat Order, 1984 and lastly that the offence would not fall under the prohibition as contained in section 497(1), Cr.P.C.
6. The learned counsel for the State while opposing the grant of bail states that statements of the applicants and co-accused, recorded under section 161, Cr.P.C. Though inadmissible under the circumstances, were enough to refuse bail.
7. 1 have given my anxious thought to the arguments of the parties and I have also perused the record. It is crystal clear that it is a case .Where the prosecution proposes only to rely upon the statements of accused recorded under section 161, Cr.P.C. Which are prima facie inadmissible under Article 39 of the Qanun-e-Shahadat Order, 1984.
8. From the perusal of police record it appears that the I.O. Of this case namely Tahir Hussain Mughal had intentionally tried to spoil the case of the prosecution. It was his bounden duty that on the day when the accused were arrested, he should have put them in an identification test conducted by a Magistrate according to law and thereafter he should have also got recorded the judicial confession of all the accused but he had neglected to do so. The conduct of the I.O. In fact has pained me as he had failed to take any sincere effort with regard to investigation of the case as in this case the minor children and the ladies were kidnapped from Pakistan with intent to sell them in Abu Dhabi where they were to be used in a Camel Race or subject to sexual lust. In this background I.O./S.H.O. Tahir Hussain Mughal deserves no leniency and in the circumstances I propose a disciplinary action for major punishment against him which may be taken by the concerned department.
9. 1 have also taken note of the things that most of the cases fail because of the attitude and conduct of the police witnesses and on account of their poor performance in the investigation of the cases. The time has now come that their gross misconduct and stalk inefficiency be checked and they should be dealt with iron hand. A failure to do so is likely to result in disorder and anarchy in Society followed by failure of justice. Moreso, these witnesses are also known as professional witnesses and they are always lenient towards the accused to give them undue benefit. Syed lmtiaz-ul-Haque Naushahi has written a book namely the Law of Medical Evidence. It will be advantageous to quote a passage at page 23 of the said Book as follows:- "Police witnesses.---With respect of policeman, constable, and others employed in the suppression and detection of crime, their testimony should usually be watched with care; not because they intentionally prevent the truth, but because their professional zeal, fed as it is by a habitual intercourse with the vicious, and by the frequent contemplation of human nature in its most revolving form, almost necessarily leads them to ascribe actions to the worst motives and to give a colouring of guilt to facts and conversations, which are perhaps, in themselves consistent with respect rectitude: That all men are guilty, till they are proved to be naturally the creed of the police, but it is a creed which finds no sanction in a Court of Justice (Pay S.57). The caution is all the more necessary in Sub-continent Indo-Pakistan where the police are possibly more corrupt than in other countries. In the first report of the Indian Law Commission it was stated that 'the evidence taken by the Parliamentary Committee of Indian Affairs during the Sessions in 1852 and 1853, and other papers which have been brought to our notice abundantly show that the powers of the police are often based for purposes of extortion and oppression'. Things have not much improved since then the conduct of the police is occasionally the subject of strong commencement in various decisions."
10. Herris in his book titled as "Hints on Advocacy", 14th Edition (pp. 104, 125) had observed that "they (police witnesses) are dangerous persons. They are professional witnesses and in a sense that no other class of witnesses can be said so".
11. In the light of the arguments advanced by the learned counsel for the parties so also delinquency on the part of the Investigation Officer, by my short order dated 23-11-2000, I had granted bail to all the applicants/accused in the sum of Rs,200,000 (Rupees two hundred thousand) each and P.R. Bond in the like amount to the satisfaction of the trial Court and above are my detailed reasons for the same.
12. A copy of this order be forwarded to the Inspector-General of Police, Sindh, for information and necessary disciplinary action against the Investigating Officer Tahir Hussain Mughal.
13. The observations made hereinabove are confined only to this bail application. They are to be considered as tentative in nature by the learned trial Court insofar as trial of the main case is concerned. The learned Trial Judge will decide the main case in accordance with law, uninfluenced by whatever is observed hereinabove.