PLJ 2024 Cr.C. (Note) 175
[Lahore High Court, Lahore]
Present: Farooq Haider, J.
GHULAM NABI alias GAMA--Petitioner
versus
STATE, etc.--Respondents
Crl. Misc. No. 71128-B of 2023, decided on 16.4.2024.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Control of Narcotic Substances Act, (XXV of 1997), S. 9(1)(3C)--Post-arrest bail, grant of--Allegation of--Charas weighing 1280 grams was recovered--After arrest of petitioner, it was necessary for investigating agency/police to produce him (accused) before Magistrate within 24 hours for his further custody on physical remand or in jail in case but admittedly no order is available on record to show that petitioner was produced before any Magistrate in this case rather it is own case of prosecution that he (petitioner) was produced before Magistrate and got sent to jail in this case--It was submitted by Deputy Prosecutor General under instructions of police official (present before Court) that police could not obtain order regarding physical remand of accused or for sending him to judicial custody due to some issue of lawyers/ advocates--It is crystal clear that after his arrest on 23.09.2023, petitioner was kept in illegal detention in this case till 25.09.2023 and then sent to jail--So, while keeping in View illegal detention of petitioner, case for grant of post-arrest bail to out. [Para 3] A & B
PLJ 1992 Cr.C. (Peshawar) 311.
Ch. Mujahid Ali, Advocate for Petitioner.
Ms. Nuzhat Bashir, Deputy Prosecutor General for State.
Date of hearing: 16.4.2024.
Order
Through instant petition, Ghulam Nabi alias Gama (petitioner) has sought post-arrest bail in case arising out of F.I.R. No. 4214/2023 dated: 23.09.2023 registered under Section: 9(1)3c of the Control of Narcotic Substances Act, 1997 at Police Station: Sabzazar, District: Lahore.
2. Briefly as per Crime Report (F.I.R.) got recorded by Muhammad Hafeez Hanif, Sub-Inspector (complainant), charas weighing 1280 grams was recovered from the petitioner on 23.09.2023.
3. After hearing learned counsel for the petitioner, learned Deputy Prosecutor General and going through the available record as well as report bearing No. 3667 dated: 09.03.2024 received from learned Sessions Judge, Lahore, it has been noticed that petitioner was arrested in this case on 23.09.2023, however, he was sent to the Jail vide order dated: 25.09.2023 passed by learned Magistrate. It is relevant to mention here that after arrest of the petitioner on 23.09.2023, it was necessary for the investigating agency/police to produce him (accused) before learned Magistrate within 24 hours for his further custody on physical remand or in jail in the case but admittedly no order is available on the record to show that petitioner was produced before any learned Magistrate in this case on 24.09.2023 rather it is own case of the prosecution that he (petitioner) was produced on 25.09.2023 before learned Magistrate and got sent to jail in this case. It was submitted by learned Deputy Prosecutor General under instructions of the police official (present before the Court) that police could not obtain order regarding physical remand of the accused or for sending him to judicial custody on 24.09.2023 due to some issue of lawyers/advocates. However, in order to clarify the same, report was requisitioned from learned Sessions Judge, Lahore which has been received and relevant portion of the same is hereby reproduced:
“I have also requisitioned the report from Mr. Imran Abid, learned Judicial Magistrate, PS Sabzazar, Lahore, which has been received and is annexed for kind perusal, according to which the petitioner/accused was not produced before him on 23.09.2024. On 24.09.2023. Sunday was falling and there was no hurdle in the way of I.O. police to produce the petitioner/accused before the learned Duty Magistrate. The reason/story engulfed in the Report No. 30 dated 24.03.2023 by Amjad Ali, S.I/I.O. appears to have been minted to avoid consequences of non-production of the petitioner/accused before the learned Magistrate. Moreover, I have also inquired from the learned Duty Magistrate, who has informed that neither said I.O. appeared before him nor produced the petitioner/accused before him on 24.03.2024. He hos also categorically denied that he conveyed any message to the I.O. not to produce accused before him due to some dispute of police and lawyers.”
Perusal of aforementioned report clearly reveals that police did not produce petitioner/accused in this case on 24.09.2023 before learned Magistrate. In aforementioned circumstances, it is crystal clear that after his arrest on 23.09.2023, petitioner was kept in illegal detention in this case till 25.09.2023 and then sent to jail. So, while keeping in view illegal detention of the petitioner, case for grant of post-arrest bail to him has been made out; in this regard, case of “Ali Zaman versus The State” (PLJ 1992 Cr.C. (Peshawar) 311) can be referred and relevant portion from the same is hereby reproduced:
“On 21.12.1991 this case was fixed for arguments (and) the learned counsel for the petitioner brought to the notice of the Court that the petitioner was taken into custody on 25.7.1991 and was not produced before the Magistrate within 24 hours as required by law. Accordingly the Investigating Officer was summoned to explain as to why the petitioner was not produced within 24 hours before the Magistrate. In compliance the Investigating Officer appeared today who stated that the petitioner was apprehended on 25.7.1991 but was only associated with the investigation and was formally arrested on 26.7.1991 and on 27.7.1991 he confessed his guilt before the Magistrate. This practice is not only illegal but also highly abuse of police powers. Under Section 61, Cr.P.C. the police is under legal obligation to produce the accused within 24 hours before the Magistrate and without the orders of the Magistrate under Section 167, Cr.P.C. the detention would amount to illegal detention. As there is no plausible explanation for the detention of the petitioner from 25.7.1991 to 26.7.1991, therefore, I would allow this application. The petitioner shall be released on bail on furnishing bail bond in the sum of
Rs. 50,000/- with two sureties each in the like amount to the satisfaction of Illaqa/Duty Magistrate.”
4. In view of what has been discussed above, instant petition filed by Ghulam Nabi alias Gama (petitioner) for grant of post arrest bail is allowed and petitioner is admitted to bail in the case subject to his furnishing bail bonds in the sum of Rs. 2,00,000/- (Rupees two hundred thousand only) with one surety in the like amount to the satisfaction of the trial Court.
5. It is, however, clarified that observations mentioned above are just tentative in nature, strictly confined to the disposal of instant bail petition and will have no bearing upon trial of the case.
(A.A.K.) Petition allowed
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