Mst. IQBAL BIBI vs THE STATE

' On the application of Sub-Inspector, Police Post, Khalabat Township, Haripur, dated 25-1-1990 that Mst. Iqbal Bibi, herein petitioner, was generally complained against dealing in heroin and a warrant was needed for her house search the learned Magistrate 1st Class, Haripur, issued a search- warrant of her house and in execution of the said search-warrant a police party raided her house and she was found present in the courtyard with a plastic envelope in her hand which was snatched by Shaukat Zaman, H.C., and the envelope was found containing 30 'Punk' of heroin, weighing 130 grams, out of which one gram heroin was separated as sample and sent to Chemical Examiner for analysis. The recovery memo. Was witnessed by Shaukat Zaman, H.C. And Muhammad Siddique, I.H.C., besides its author Zafar Khan, S.I., Police Station, Khalabat Township.

2. Petitioner applied for bail to the Magistrate, afterwards to Sessions Judge and last to the High Court, but to no better fate. At last she invoked the provisional and other jurisdiction of this Court under Article 203-DD of the Constitution of the Islamic Republic of Pakistan, 1973, questioning the correctness, legality and propriety of the orders passed by the aforesaid Courts refusing her a bail in the case.

3. Mr. Saeed Akhtar Khan, Advocate represented the petitioner and Mr. Abdul Mannan Akhundzada, Advocate (Law Officer) pleaded for the State (Respondent). Learned counsel for the parties were heard at length and the record was perused. It was first canvassed that the petitioner was a young lady already betrothed and soon to be married that she was involved in the case and detained for the last six months without there having obtained a judicial remand and thus kept in illegal confinement. The original record was referred to reporting that she was arrested on 25-1-1990 and presented before Court on the following day, that two days police custody was obtained. On 28-1- 1990 the Court remanded her to the judicial custody till 12-2-1990 and afterwards she has not been remanded to custody as per record. Reference was made to section 344, Cr.P.C. Which vests power in a Magistrate to remand an accused person to custody but not for a term exceeding fifteen days at a time. Reliance was placed on S.B. Judgment of Lahore High Court published in 1985 P Cr. L J 603 in which the failure to obtain judicial remand from any Court of competent jurisdiction for about three months' time was found illegal and the Court ordered the release of the accused on bail though charged unde section 302, P.P.C. The Court has also taken serious notice of the lapse on the part of the police not earring to obtain judicial custody of petitioner from Court of competent jurisdiction and thus prima facie making out a case of illegal confinement under section 343, P.P.C.

And the Court accordingly ordered issue of notice to the Investigating Officer to show cause why such case should not be got registered against him under section 343, P.P.C. Reference was also made to S.B. Judgment of Peshawar High Court published in PLD 1989 Peshawar 43 in which the remand of accused to custody under the signatures of the Reader of the Court was held amounting to illegal detention, being in clear violation of the provisions of section 344, Cr.P.C. And accordingly bail was allowed to the accused on the said ground amongst others.

4. Secondly in the case contravention of the mandatory provisions of section 103, Cr.P.C. In the making of the search of the petitioner's house in the absence of two or more respectable inhabitants of the locality was canvassed and in the context reliance was made on S.B. Judgment of Lahore High Court published in PLD 1988 Lah. 574 in which a recovery of over one kilogram of heroin from the accused's house without association of two or more respectable inhabitants of the locality was held to render the recovery defective and accused was granted bail on the ground amongst others. In the said judgment reference was also made to section 155(2), Cr.P.C. Which places a bar on an investigation of a non-cognizable offence without an order of Magistrate of Ist or 2nd Class having power to try the case. Notice was taken of the lapse on the part of the Investigating Officer since in the circumstances of the said case there was being made out a case of the offence under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, and the offence was apparently non-cognizable having not been committed at a public place with reference to Article 16 of the Prohibition Order. In the context reference was also made to 1989 SCMR 202 in which a lady with a suckling child found in possession of about 150 grams of heroin powder in her house, not a public place, was granted a bail with reference to Article 16 of the Prohibition Order.

Again in 1989 SCMR 269 a lady with advanced pregnancy charged for the recovery of 12 Kgs. Of Hashish, 1-1/2 Kgs. Of heroin and 1-1/2 Kgs. Of opium was released on bail under observations that let her give birth to a baby as a free citizen.

5. In view of the above the learned counsel for the petitioner questioned the correctness and at least the propriety of the orders of the criminal Courts refusing her bail under observations that she was charged for an offence considered as a crime against society with repercussions on young generation of the country, without taking into consideration the infirmities in the investigation, search and recovery and the compassionate ground of petitioner being a young lady already engaged and soon to be married. Hence, without dilating upon the merits of the case in details, lest either side be prejudiced, this Court accepts the revision petition and orders the release of the petitioner on bail on furnishing bonds in the sum of rupees twenty thousand with two sureties each to the satisfaction of Illaqa/Duty Magistrate in view of the first proviso of subsection (1) A of section 497, Cr.P.C. And apparently non-compliance of the mandatory provisions of section 103, Cr.P.C. At the time of the search, section 155(2), Cr.P.C. In investigating a non-cognizable case and section 344, Cr.P.C. In detaining the petitioner in custody without formal orders of remand on and after 12- 2-1990 till the date.