AMANAT Versus STATE

Aziz-ur-Rehman, Excise Inspector Chichawatni, District Sahiwal was present at Add Bungla Ukkanwala in the company of Muhammad Usman, A.S.I., Jamshed Ali H.C., Mukhtar Ahmad, Constable, Muhammad Akram, Constable and Muhammad Ijaz, Constable of C.I.A. Staff, Chichawatni in connection with "Gasht" of the area pertaining to matters of narcotic. He received the secret information that one person named as Meeka resident of Chak No.87/ 12-L was making sale of narcotics who could be apprehended if the raid was conducted. He reached alongwith the police party near Primary School Chak No.87/12/L and sent Muhammad Ijaz, Constable as a decoy customer with three currency notes of Rs.100 each to purchase the opium. After about 15 minutes Muhammad Ijaz, Constable returned and intimated the raiding party that the person named as Meeka had received Rs.300 and would hand over the opium after some time. After a moment Muhammad Siddique petitioner-accused is said to have arrived there. He reached the Mor of the street and on seeing the police party wanted to retreat while running. He was overpowered. His person was searched. Some packets were recovered which contained opium. The same were weighed and were found to be 970 grams in weight. He sealed 10 grams of opium in one packet and the remaining opium in another packet. He prepared memo. attested by Jamshed Ali, H.C. and Muhammad Ijaz, Constable. He took into possession the three currency notes of Rs.100 each vide memo. attested by Muhammad Ali, H.C, and Muhammad Ijaz, Constable. He sent complaint to the S.H.O., Police Station Ghazi Abad, District Sahiwal where F.I.R. No.125, dated 7-5-1995 was registered under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979. The police has added Article 9 of the Control of Narcotic Substances Ordinance. Obviously Muhammad Siddique was arrested on 7-5-1995. His bail plea has been rejected by the Sessions Judge, Sahiwal on 4-9-1995 who has filed this petition to try his luck to be admitted to bail.

2. I have heard the learned counsel .for the petitioner as well as learned State Counsel and gone through the record before me. First of all I would like to determine this fact as to whether or not Aziz-ur-Rehman, Excise Inspector, Chichawatni was competent to search the person, seize the opium and arrest Muhammad Siddique petitioner-accused. In this regard section 19(1) of the Control of Narcotic Substances Ordinance is referred to whereby an officer not below the rank of Sub-Inspector of Police or equivalent authorised in this behalf by the Federal Government or the Provincial Government has been made competent to proceed. According to Notification No. SRO145(1)/95, dated 27-2-1995 issued by the Narcotic Control Division, Islamabad a Sub-Inspector of the Anti-Narcotic Force and an officer not below the rank of Inspector in the Excise, Police and Customs Department can perform the functions, mentioned under sections 19(1), 20, 21, 34(2) and 35 of the said Ordinance within the areas of their respective jurisdiction. For the purpose of convenience and future guidance for all, the aforesaid Notification No.SRO 145(1)/95, dated 27-2-1995 issued by the Narcotic Division, Islamabad is reproduced as under;--

"NARCOTICS CONTROL DIVISION

Islamabad, the 27th February, 1995.

S. R.O. 145(1)/95.--- In exercise of the powers conferred by subsection (1) of section 19 of the Control of Narcotic Substances Ordinance, 1995 (VI of 19951, the Federal Government is pleased to authorise the members not below the rank of Sub-Inspector of Anti-Narcotics Force, the Officers not below. the rank of Inspector, in the Excise, Police and Customs Departments and Subedar in the Frontier Corps in the Provinces of Balochistan and the North-West Frontier, to exercise the powers and perform the functions under aforesaid section arid sections 20, 21, 34(2) and 35 of the said Ordinance within the area of their respective jurisdiction. "

3. It means that Aziz-ur-Rehman, Excise Inspector could proceed within the area of his jurisdiction.

4. Keeping in view the quantum of 970 grams of opium it was agreed by the learned counsel for the parties and I also hold the same view that in case of success of prosecution case, section 9(c) of the Control of Narcotic Substances Ordinance would be applicable under which the petitioner shall have to be charged and convicted. However, for the purpose of the disposal of the bail application following arguments were made which shall be dissected and analysed.

5. Learned counsel for the petitioner argued that even though sufficient time was available to the Excise Inspector and the police party no person from the public was joined to witness the recovery of the opium and that the alleged recovery is doubtful. On the contrary the contention of the learned State Counsel is that the Excise Inspector and the police officials are respectable and good witnesses and if they have attested the recovery memo that would not lose its legal value. 1, however, agree with the learned counsel for the petitioner accused. The fact of the matter is that according to the F.I.R. the informant intimated the Excise Inspector and the police party at Adda Bungla Ukkanwala that some person was making sale of the narcotics. The party reached at some distance in Chak No.87/12-L. No person from the said Adda and from the said Chak was joined in the recovery proceedings even though some time was available to the Excise Inspector and the police party to contact some person from the public. Even it is not narrated that the persons from the public were contacted and they refused to join the recovery proceedings. This being the position the alleged recovery shall have to be viewed with caution. I hold the same view that all the Police Officers of every rank are respectable persons. However, the law has to take its course. Without the weapon of cross examination much weight cannot be granted to the members of the police force at this initial stage while disposing of this bail application for the purpose of the recovery of the aforesaid opium. To exemplify all the Police Officers of all the ranks are respectable persons. However, the confession of an accused before a Police Officer is inadmissible in evidence in view of the mandatory provisions of Article 38 of the Qanun-e-Shahadat, 1984. On this ground the involvement of Muhammad Siddique petitioner can well be held to be a question of further inquiry. It is the admitted position that no other case of the instant nature stands registered or is pending against Muhammad Siddique petitioner-accused. In the circumstances I hold that Muhammad Siddique petitioner-accused is entitled to be admitted to bail than to be retained in jail.

6. For what has been said above, I accept this application and admit Muhammad Siddique petitioner-accused to bail in the sum of Rs.50,000 (Rupees) fifty thousand) with one surety in the like amount to the satisfaction of the trial Court with the direction to appear there on every date of hearing failing which the trial Court may cancel his bail.

N.H.Q./S-30/L Bail allowed.