THE STATE Versus SHAMIM AKHTAR

ORDER

The question raised in this criminal miscellaneous application may be stated in a very few words, but the answer is by no means free from difficulty‑

2. Mst. Shamirn Akhtar alias 13harjai, the respondent, who was arrested on 19‑1‑1992 in Crime No.18 of 1992, Napier P.S. under Article 3/4 of The Prohibition (Enforcement of Hadd) Order, 1979, for possessing powder of herion, weighing one kilogram, was released on bail by learned III Additional Sessions Judge (South) Karachi, vide order dated 4‑2‑1992. It is alleged that on 5‑2‑1992 she made a murderous assault upon one Mst.Rani who lodged such report against her at Napier P.S, being Crime No.22 of 1992, Napier P.S. under section 324 P.P.C., as amended. The said Mst. Rani and one Mst. Irshad Begum then sent an application to Hon'ble Chief Justice of this Court seeking cancellation of bail granted to respondent in Crime No.18 of 1992, Napier P.S., under Article 3/4 of The Prohibition (Enforcement of Hadd) Order, 1979, by III Additional Sessions Judge (South) Karachi. The said order was examined by a learned Judge of this Court who was pleased to observe as follows:‑‑

"R & P of the case has been examined by me. The trial Judge while hearing the bail application has recorded his verdict regarding the credibility of the prosecution witnesses who have as ye! not been examined in the case and confronted with the allegations of the accused . The offence is punishable with imprisonment for life. Notice to show cause why bail granted to the accused be not cancelled may be issued to them."

3. It was in these circumstances that the respondent was served with a notice to' show‑cause as to why the bail granted to her in Crime No.18 of 1992, Napier P.S., under Article 3/4 of The Prohibition (Enforcement of Hadd) Order, 1979, by M Additional Sessions Judge (South) Karachi, may not be cancelled.

4. 1 have heard Mr. Abdul Ghafoor Mangi, learned Addl. A.G. for State and Mr. Abdul Majeed Chaudhry, learned counsel for respondent. Mr Muhammad Akbar Khan, learned counsel for Mst. Rani and Mst. Irshac Begum wanted to argue, but he was not permitted to do so, as Mst. Rani anc Mst. Irshad Begurn who had no concern with Crime No.18 of 1992, Napie P.S., under Article 3~4 of The Prohibition (Enforcement of Hadd) Order 1979, are not the aggrieved persons.

5. Mr. Abdul Ghafoor ManA learned Addl.A.G. representing the State has contended with force that the impugned order was passed after detailed examination of evidence and elaborate documentation of merits, which should have been avoided, while deciding the bail application. He has further endeavoured to show that the respondent being a history sheeter, involved in 12 criminal cases, and a previous convict in 21 cases should not have been released on bail in a heinous case of possessing a huge quantity of powder of heroin, punishable with imprisonment for life, only within few days of her arrest. He has also submitted that the respondent, being a resident of red light area only criminals, pimps and persons of evil repute could be available to act as Mashirs. There is good deal of force ' in all these contentions. The impugned order gives an impression that the learned Additional Sessions Judge has virtually disbelieved the case of the prosecution without providing an A opportunity to the prosecution to adduce evidence against the respondent, which is evident from the following passage of the said order:‑‑

"From these own words of SHO, there is no doubt that Mashir Mumtaz Hussain is a man of bad character. Additionally he is a convict of four cases and he is also under influence of the police as some cases are still pending against him. He is, therefore, not a reliable Mashir and has reason to falsely implicate the accused. Other Mashir is interested not only in police but also in Mst. Irshad alias Shado with whom the accused has enmity. The enmity of the accused with Mst. Shado is established by the documents produced by the accused. In such circumstances the recovery is not in presence of some respectable persons of the locality, but in presence of interest convicted, bad character persons. The police by not associating respectable persons have violated the mandatory provisions of section 103 Cr.P.C .......

6. The learned Additional Sessions Judge, who was not expected to go into the details of the evidence to And out whether the evidence will be sufficient to record conviction against the respondent, does not seem to have paid any attention to the established law that the provisions of section 103 Cr.P.C. apply when search is to be made of a place and not to the search of a person. It may be recalled that according to the case of the prosecution the recovery of powder of heroin was made from the bag (Thela) which the respondent was carrying.

7. The perusal of the record also makes it clear that the respondent who was involved in 32 criminal case was convicted in 21 cases. There is also no dispute that she was prosecuted before a Tribunal under the Sindh Crimes Control Act, 1975, previously. The discretion to grant bail to such a person, therefore, should not have been exercised so lightly. No doubt the power available to this Court under subsection (5) of section W7, Cr.P.C., has to be exercised in extraordinary circumstances, but it is meant to be exercised in appropriate cases.

8. Coming now to the third contention, it is obvious that the respondent resides in brothel area (Napier Road), where mainly the dancing girls reside She was convicted mostly for doing an obscene act in public place, an offence punishable under section 294, P.P.C. The police had, therefore, an uphill task to select "respectable persons" to act as Mashirs from a locality where only dancing girls, prostitutes and imps reside. It may also be added that respectability does, not connote any particular status and every person is entitled to claim respectability in accordance with the surrounding conditions. E At any rate this question which required deeper appreciation of evidence could have been determined after affording an opportunity to both the Mashirs to explain their position during the course of trial.

9. In the circumstances mentioned above, I am satisfied that the learned Additional Sessions Judge. had fallen into basic error while granting bail to the respondent by ignoring the specific prohibition of law contained in first proviso to subsection (1) of section 497 Cr.P.C, when there appear ,reasonable grounds to believe that she has been guilty of an offence punishable with imprisonment for life. As a necessary corollary to this finding the bail granted to respondent is cancelled, who shall surrender before the trial Court forthwith. The III Additional Sessions Judge (South) Karachi, shall take necessary steps for remanding the respondent to custody, if she fails to surrender before him within three days from the receipt of this order.

10. The case of the prosecution is primarily based upon three witnesses, viz. the seizing officer and two Mashirs. It will be appreciated if the trial against the respondent is concluded within three months from the receipt of this record.

11. It is needless to add that the observations made by the trial Court and by this Court are tentative in nature and they should not influence the mind of learned Additional Sessions Judge in any manner.

N.H.O./S‑884/K