ORDER-SHEET

IN THE HIGH COURT OF SINDH CIRCUIT COURT HYDERABAD

Criminal Bail Application No.S-698 of 2018

Date of hearing:                  28.12.2018.

Date of order:                      28.12.2018.

Applicant:                            Naseer Ahmed, Nadeem and Ghulam Qadir through Mr. Mumtaz Sachal Awan, advocate.

Respondent:                         The State through Mr. Shawak Rathore Deputy Prosecutor General, Sindh.

O R D E R

Fahim Ahmed Siddiqui, J:  The applicants namely (1) Naseer Ahmed son of Abdul Rehman, (2) Nadeem son of Sher Dil and (3) Ghulam Qadir son of Sher Dil are seeking their release on post arrest bail during trial in a case registered against them at PS Jamshoro, District Jamshoro vide FIR No. 185/2016 under Section 9 (c) CNS Act, 1997.

2.                After hearing the arguments advanced on behalf of the applicants and learned prosecutor as well as perusing the record produced before me, I have observed as under: -

(a) The allegation against the applicants are that they were arrested on a tip-off during routine patrolling of CIA staff of Jamshoro, while they were allegedly available in an abandoned SDA quarter for the purpose of selling charas.

(b) On such information, the CIA staff headed SIP Roshan Ali Tunio approached to the reported place and arrested the applicants while allegedly one of their associate succeeded in escaping from the scene of offence. Allegedly, at the time of arrest, from each of the applicants 6000 grams of hashish (charas) was recovered  while certain currency notes were also recovered from their personal search.

(c) It is mentioned in FIR in an unbelieving style that at the time of raid, the police party found the applicants sitting in the said abandoned quarters and all of them were holding black shoppers wherein hashish (charas) was available.

(d) There was beforehand information but in spite of such information, the raiding CIA police party did not try to associate at least one private witness from the locality to become marginal witness of the 'memo of arrest and recovery'.

(e) Admittedly, no purchaser of the hashish (charas) was found at the place of recovery and no evidence in this respect collected by the raiding police party.

(f) It is argued on behalf of the applicants that they were involved due to political animosity, as the applicants belong to rival political parties and considering the mode of arrest and recovery, false involvement cannot be ruled out.

(g) No doubt for a criminal case, the police officials are as good as private witnesses but when the raid is conducted on a tipoff, non-association of private witness in the backdrop of animosity with police, creates a ground for further inquiry.

(h) The DPG has called investigation officer of the case, who is also complainant. The DPG after consulting the investigation officer SIP Roshan Ali informs that the CIA Centre is not a police station and investigation was not assigned to him by the SSP or DIG.

(i) Since, the complainant is not the officer incharge of police station nor he belongs to the said police station where FIR is lodged; therefore, the investigation cannot be assigned to him, as per provision of Rule 25.1 of Police Rules 1934.

(j) For assigning investigation to the present investigation officer, it is necessary that the same should be done by the order of SSP, as per provision of Rule 25.8 on a reference of the officer incharge of police station.

(k) The allegation of false involvement and highhandedness under the specific allegation of animosity with police bears weight for false involvement.

(l) It is not proper for a police officer, who is complainant, to investigate the case as a case reported as State v. Bashir Ahmed and others PLD 1997 Supreme Court 408, wherein it held as:

“It could hardly be expected that a police officer, who is heading a raiding party and is a witness, also becomes the complainant and loges an F.I.R. against the accused, and then becoming an Investigating Officer of the same case, will comply with the aforesaid Police Rule. In the circumstances, the practice of the seizing officer or the head of a police party who is also a witness to the crime becoming or being nominated as an Investigating Officer of the same case should be avoided and if any other competent officer is available in the police station, he may be nominated as the Investigating Officer rather than the head of the Police Party. As observed, Investigating Officer is an important witness for the defence also and in , case the head of the police party also becomes the Investigating Officer he may not be able to discharge his duties as required of him under the Police Rules.”

3.                In view of the above observation, I am of the considered view that a case of bail has been made out in favour of the applicants, as such, they are entitled to post arrest bail in the instant case.

4.              The ultimate outcome of the above discussion is that since the applicants are entitled to bail; therefore, the applicants were admitted to bail subject to their furnishing solvent surety in the sum of Rs. 100,000/- (Rupees one hundred thousand only) by each of them and PR bonds in the like amount to the satisfaction of the trial Court through my short order dated 28-12-2018 and these are the reasons for the same.

Before parting, I would like to further observe that if any of the applicants, after getting bail, will not appear before the trial Court and the trial Court is satisfied that the applicant(s) becomes absconders then the trial Court is fully authorised to take every action against the applicant(s) and their respective surety(ies) including cancellation of bail without making a reference to this Court.

JUDGE