GHULAMUDDIN vs The STATE through ANF Gilgit
This matter concerns a post-arrest bail petition filed by the accused, who was charged under Section 9(c) of the Control of Narcotic Substances Act 1997 following the alleged recovery of 3000 grams of charas. The core legal question was whether the petitioner, a juvenile, was entitled to bail despite the statutory bar under the Control of Narcotic Substances Act 1997, particularly given the lack of independent witnesses and the fact that the complainant also acted as the investigating officer. The Court held that the petitioner was entitled to bail, determining that the case fell within the ambit of further inquiry. The Court emphasized that while there is no absolute legal prohibition against a complainant investigating their own case, propriety dictates that a police official who lodges an FIR should avoid conducting the investigation to ensure fairness and impartiality. Furthermore, the Court considered the petitioner's status as a first-time offender, his age (under 18), and the lack of progress in the trial as cumulative factors justifying the grant of bail.
- Can a complainant police officer also act as the investigating officer in a narcotics case?
- Does the age of an accused being under 18 years constitute a ground for bail in narcotics cases?
- Is the absence of independent witnesses in a recovery proceeding a factor for granting bail?
- Section 9(c), Control of Narcotic Substances Act 1997
- Section 497(1), Code of Criminal Procedure 1898
- Section 25, Control of Narcotic Substances Act 1997
- Section 51, Control of Narcotic Substances Act 1997
ORDER
' MALIK HAQ NAWAZ, J.---The petitioner stands booked for the above offences vide FIR No,14/15 under section 9(c) registered at Police Station ANF Gilgit.
2. The persecution story as narrated in the FIR is that the petitioner was spotted by ANF official near parko petrol pump and on search of a shopping bag of white colour 3 pkts of charas were recovered there from. Each pkt was containing 1000 grams of charas and in total 3000 grams charas was recovered. 3 pkts of 10 grams each were taken as a sample and were sent to chemical examiner for expert opinions'.
3. The petitioner applied for post arrest bail before the Special Judge ANF Gilgit, which was declined vide order dated 05/04/16 and being aggrieved from the verdict rendered against him, he has approached this Court for concession of bail.
4. The learned counsel for the petitioner submitted that the case is false and the petitioner has been falsely implicated in the case, which fact finds support from the perusal of recovery memo, where two police witnesses are cited as marginal witnesses of so-called recovery. The learned counsel further submitted that the S.H.O Umar Fahim is complainant as well as investigating officer in the instant case, which is a mockery in the eyes of law as no one could be the Judge of his own cause. Per contention of learned counsel, the petitioner is below 18 years of age and he is entitled for grant of bail under section 497(1), as evident from the record annexed with the petitioner and when there is no apprehension that he will tamper with persecution evidence or will jump bail. The petitioner was arrested from a public place which was over crowded but no independent witness was associated with the recovery proceedings, which militates against the persecution.
5. On the other hand the learned Special Prosecutor ANF, vehemently opposed the petition and stated at bar that the petitioner was caught red handed by the ANF officials and the provision of section 25 exclude the association of private witnesses. Per learned Special Prosecutor there exists a prima facie case against the petitioner, the concession of bail which is otherwise barred under section 51 of CNSA-1997 should not be extended to him.
6. We heard both the parties at length and scanned the record of the case with their able assistance. The FIR lodger S.H.O. Umar Fahim is complainant in the instant case, who also investigate the case, although there is no legal embargo, that a complainant (I.0.) cannot investigate the case as the law laid down in PLD 1997 SC 408, and this controversy has been set at rest but the propriety demands that in a case where an FIR is lodged by a Police official, he should avoid to conduct the investigation as his investigation how so ever fair may be criticized by the accused on the ground, that a fair and impartial investigation has not been carried out, which has prejudiced his case.
7. The petitioner is below the age of 18 years and in judicial lock up since about last 08 months, without any substantial progress in the trial. Moreover, he is first offender and there is no chance of his abscontion or tampering with the case.
8. When all these factors taken cumulatively, the case of the petitioner falls within the ambit of further inquiry. We in the result of above discussion vide our short order dated 23-06-2016 allowed, bail to the petitioner which reads.
"The instant bail petition is accepted. The petitioner/accused be released on bail subject to his furnishing bail bonds in the sum of Rs, 1,000,000/ -(ten lakh only) with two sureties each in the like amount to the satisfaction of trial Court. "
9. The instant petition is disposed of accordingly. File.