2015 PLP 1440 (YLR)

MUHAMMAD DAUD KHAN, J.--Having failed to secure his post-arrest bail, Imran Khan, has petitioned to this court for grant of bail. Earlier, his bail plea was turned down by learned Additional Sessions Judge-IV, Lakki Marwat, vide order dated 8-5-2014.

2. The charge against the petitioner is that he was trafficking narcotic substances from Bannu to DI Khan. The local police had some spy information about the trafficking. In pursuance of that information, on the eventful day, the local police made certain arrangements to prevent the trafficking of narcotics. At about 1600 hours, the police party led by one Javed Khan, ASI, found a black colour motorcar bearing No.PH733 Islamabad, moving from Bannu. Two persons were present sighted in the motorcar. The motorcar was signaled to stop. But it did not, violating the orders of the police party. The driver dangerously crossed the barricade raided for the purpose. The police party chased the motorcar. After some time, the police saw the motorcar standing on the Indus Highway, near a place called Pahar. The police party saw a man running towards a nearby mountain. Another man was sitting in car. On being inquired, the man sitting said he was Imran Khan (the petitioner). Imran disclosed that the man running towards the mountain was Naseer Muhammad. On search of the car, the police party found that charas was lying in a gas cylinder. On weighing, the charas happened to be 18 kilogram and 20 gram was recovered. The charas was formally taken into possession. The event was reduced into writing on the spot in the form of a murasila. Case FIR No. 167 dated 26-4-2014, under section 9(C) CNSA, at Pezu Police Station in District Lakki Marwat.

3. Counsel for the petitioner raised a number of objections at the bar. He denied any personal recovery and ownership of the contraband charas. He also argued that the petitioner was merely a passenger in the car, and that the man who abandoned the car on seeing the police party was rather the real culprit. He also raised a legal objection, saying that an ASI is not a competent official to register a case like the present one.

4. On the other hand, the Asst. A.G. for the State rebutted the arguments of counsel for the petitioner. He argued that the petitioner was caught red handed, the charas in question was in huge quantity, attracting the prohibitory clause of section 497, Cr.P.C. He added that the petitioner has no pinpointed any mala fide on the part of the police party, which arrested him. Responding to the incompetency of an ASI for registration of the case, he argued that, if at all, such an act could be, at the most, considered a curable irregularity under section 537, Cr.P.C.

5. I have heard arguments of learned counsel for petitioner, Addl. A.G, and gone through the record with their valuable assistance.

6. No doubt, a huge quantity of narcotics was recovered from a cylinder lying in the motorcar. But there appears to be no escaping from the fact that the petitioner was travelling in the car. On the face of it, the version of the seizing officer is supported by the P.Ws., who no doubt are police officials, but prima facie there is nothing on record, which at this stage could show any mala fide on the part of police. The offence for which the accused/ petitioner is charged is heinous in nature and its punishment falls within the prohibitory clause of section 497, Cr.P.C. On tentative assessment of available material on record, the petitioner is not found entitled for the concession of bail.

7. As regards the issue of incompetency of the ASI to register the case, it is clear from the record that the police officials did not launch a raid. In fact, it was during their duty hours that they got the information, as such, they had to attend to the call of their duty. As section 21 of CNSA only pertains to the raid, hence is not applicable to the instant case. Even otherwise, when an ASI is In-charge of a Police Check post and standing on his duty, it cannot be expected that upon apprehension of the accused, he would go in search of the officer, who is entitled to arrest the accused. At the most, it is an irregularity which can be cured under section 537, Cr.P.C. Moreover, this aspect of the matter does not seem to cause any prejudice to the accused. Reliance can be placed in case titled "Muhammad Hanif v. The State" (2003 SCMR 1237). The hon'ble Supreme Court of Pakistan in the case of "State through Advocate General v. Basher" (PLD 1997 SC 408), has held: "Investigation by an officer not authorized to do so was merely an irregularity, which is curable under section 537, Cr.P.C." This Principle was reiterated by the apex Court in case "The State v. Abdali Shah" (2009 SCMR 291). In the reported case of "Zafar v. the State" (2008 SCMR 1254), the larger bench of Hon'ble Supreme Court of Pakistan, has held in the judgment that provision of sections 20, 21 and 22 of the Control of Narcotics Substances Act, 1997 being directory, its noncompliance would not be a ground for holding the trial conviction bad in the eyes of law. I am further fortified in my view by the judgments of Hon'ble Supreme Court "Ismail v. The State" (2010 SCMR 279) and "Muhammad Noor and others v. The State" (2010 SCMR 927).

8. For what has been discussed above, this bail petition is dismissed. However, it is directed that the prosecution shall submit challan within a week and the trial court decide the case expeditiously, keeping in view the national judicial policy.

9. Before parting with the order it is directed that any observations made in this order are tentative in nature and should not prejudice the proceeding before the learned trial court, where the case be decided on its own merits after recording of the evidence. ARK/388/P Bail refused.