1. ' The petitioner seeks bail in a Crime bearing No,713 registered at Police Station Sharqi Peshawar under Section 9 of the Control of Narcotic Substances Act, 1997, however, the section of law was changed to the one under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 at the time of preparation of challan.
2. ' According to the prosecution on prior tip off the first informant, namely, Makhtiarullah, IHC on 31-7- 2002 started the checking of vehicles on Khyber Road, Peshawar when at 14-00 hours a wagon with passengers came there which was stopped for checking and petitioner, on search, was nabbed having in his possession one kilogram of heroin which was seized and taken into possession through a recovery memo. And sample taken from the same was sent to the Chemical Examiner whose report is in positive.
3. ' The learned counsel for the petitioner took strong exception to the delaying tactics on the part of the prosecution by not submitting the challan in Court which was drawn and submitted on or after 5-11-2002 and, therefore, was of the view that such delay in' itself is a ground for the release of the petitioner on bail. He contended that the circumstances in which the accused-petitioner was arrested create reasonable doubts in the fairness of pr. Secution story more so when no independent person has been cited as a witness of the recovered contraband. Also attacked the lawful authority of Makhtiarullah, IHC who in view of the law laid down by this Court was not competent to search the accused: seize the alleged contraband and to arrest the petitioner, therefore, all the acts were void ab initio.
4. ' The learned Additional Advocate-General, however, opposed the above grounds for bail but could not explain the objectionable conduct of the policy by not submitting the challan in Court well within time: He argued that the challan is now before the trial Court and directions may be given for expeditious trial instead of granting bail.
5. ' The conduct of the prosecution/Investigating Agency is no doubt highly deplorable because it has delayed the submitting of the challan for a long period and that too without any reason and justification and despite of clear directions repeatedly given in such-like cases the prosecution has failed to abide by the law and rule so laid down by the Courts.
6. ' The change introduced within the police hierarchy in separating the Investigation Branch from the executive, it seems, has not visibly improved the performance of it albeit the new system introduced is at heavy cost of the fragile exchequer. The Investigating Agency/prosecution has yet to come out from the long drowsiness and to keep pace with the demand of time. Such state of affairs is no more tolerable for the Courts, the Government and for the public at large. The Courts are under legal obligations to step into the matter because the police is a tool of the State machinery charged with the duty of collecting evidence in criminal cases and to forward the criminals to the Courts of law within the framework laid down in the different provisions of the Criminal Procedure Code. If such tool becomes so blunt then it becomes the obligation of the Courts to chisel out such bluntness thereby to reactivate the same.
7. ' The police in cognizable cases has an authority to detain an accused person only for twenty-four hours under the provisions of section 54, Cr.P.C. And on the expiry of said period it is required to get a legal sanction from the Illaqa Court for further detention and also for investigation in view of the provisions of section 167, Cr.P.C. Again the police has no authority to keep the file with it for indefinite period and a strict check is provided over any such malpractice under the provisions of section 344, Cr.P.C. But unfortunately the learned Magistrates and other Courts at the District levels are not faithfully observing the requirements of the said provisions thus paving the way for police to withhold the challan from the Court for longer time at their whims and wishes. It has been complained at the Bar and other legal circles that some learned Magistrates for granting remand both under sections 167 and 344, Cr.P.C. Are using their self-prepared printed pro formas which is a gross illegality because the legal obligations which they are required to discharge under the above provisions in such circumstances are not fairly performed as acting in this manner it is difficult to hold that they apply their judicial mind, therefore, it is noted with concern and it is directed in the interest of justice that such practice be discontinued and in each and every case a self-speaking order containing reasons be passed. This would be also a. Strict check on the police in getting adjournments/extension in time for submission of challan on flimsy grounds.
8. ' Not because it is the legal obligations of the Government and the Provincial Chief of the Police but is also the firm demand of the nation that they Ant take concrete steps to visibly improve the performance of the Investigating Police Agencies to come up to the expectations of the people on the subject under discussion.
9. ' It is an indefeasible right of every accused person to get speedy trial, therefore, any unnecessary delay at the investigation stage cause delay in the conclusion of trial denying such right to an accused, therefore, for faithful compliance with the law and writ of the Court copies of this judgment/order be sent to the Secretary to Government of N.-W.F.P. Home and TA Department and the Inspector-General of Police, N.-W.F.P. So that the menace of delay in investigation is arrested at this stage otherwise to famous maxim: that is "Censsante ratione legis cessat ipsa lex" which means,'reason is the soul of law, and when the reason of any particular law ceases, so does the law itself', would come to play.
10. ' As for the grounds on which the bail is sought are of such nature that any expression of opinion at this stage would certainly prejudice the case of the prosecution at trial which has already commenced, therefore, the bail petition is dismissed. However, in the interest of justice it is directed that the trial Court shall conclude the trial within a period of two months and not to allow any unnecessary adjournment to the prosecution and if due to the conduct of prosecution the trial is not concluded within the above time then the petitioner shall be deemed to have been released on bail subject to furnishing bail bond in the sum of rupees two lacs with two reliable sureties to the satisfaction of the trial Court. The record of the case be sent back to the trial Court through special messenger.