P L D 2005 Karachi 125 (PLP)

We have heard Mr.Mehmood Alam Rizvi, Special Prosecutor ANF and Mr. Muhammad Hanif. Kashmiri, learned counsel for Respondents. At the outset the contents of relevant S.R.O. are reproduced herein below for the purpose of ready reference. "S.R.O. 600(I)/97.‑‑In exercise of the powers conferred by section 28 of Control of Narcotic Substances Act, 1997 (XXV of 1997), the Federal Government is pleased to invest the members and officers not below the rank of Sub‑Inspector of the Anti Narcotics Force and Excise, Customs and Revenue Departments and Frontier Corps, in the Provinces of Balochistan and the North‑West Frontier, with the powers of an officer‑in‑charge of a Police Station for the investigation of offences under the said Act. " A plain reading of this S.R.O. would indicate that it empowered the respective officers/officials in the Province of Balochistan and North‑West Frontier as Officer Incharge of a police station for the purpose of investigation of offences under the Control of Narcotic Substances Act, 1997. Application of this S.R.O. by itself would not, in any manner, warrant cancellation of bail. Besides, it could not be shown to us if a similar S.R.Q. was issued in respect of the Province of Sindh. However, we are conscious of the legal position that in essence such S.R.O. is not even required to be issued in presence of the provisions of subsection (2) of section 6 of the Anti‑Narcotics Force Act, 1997, which run as under:‑‑ "6(2) Save, when the Director‑General otherwise direct, a member of the Force, not below the rank of an Inspector may, for the purpose of any inquiry for investigation under this Act, exercise all the powers of an officer‑in‑charge of a police station in any area in which he is for the time being and, when so exercising such powers, shall be deemed to be the officer‑in charge of a police station discharging his functions as such within the limit of his station." The above provision, in express terms, empowers an Inspector of the Anti‑Narcotics Force to conduct investigation. Mr. Muhammad Hanif Kashmiri, learned counsel for respondents vigorously contended that the complainant in this case was a Sub‑Inspector of police and he acted as the master of show by lodging F.I.R., investigating the case and finally submitted challan in the Court and owing to such unwarranted procedure the learned trial Court was justified in extending concession of bail. He also sought support in this regard from Bashir's case PLD 1997 SC

408. In the first instance, it may be clarified that a Full Bench of this Court has decided the proposition of law in clear terms that the irregularity in the matter of submission of challan or say a final report under section 173, Cr.P.C. would not, by itself, vitiate the proceedings. Nevertheless, the other argument of Mr. Muhammad Hanif Kashmiri cannot be overlooked, but that too, in essence, relates to an irregularity not an illegality, since under subsection (2) of section 156, Cr.P.C. no proceedings of a police officer in any case shall, at any stage, be called F in‑question on the ground that the case was one which such officer was not empowered under section 156, Cr.P.C. to investigate. No doubt in the instant case a Sub‑Inspector had investigated the offence, but that by itself, shall not brush aside the entire proceedings including that of recovery of narcotics. As far, this procedural aspect is concerned, the Hon'ble Supreme Court in the case State v. Bashir PLD 1997 SC 408 had taken into consideration the relevant circumstances and observed as under:‑‑ "

18. As regards the question, as to whether the above illegality/irregularity if already committed by the C.I.A. personnel would vitiate the trial, it may be observed that subsection (2) of section 156, Cr.P.C. expressly provides that: `No proceeding of a police officer in any such case shall at any stage be called in‑question on the ground that the case was one which such officer was not empowered under this section to investigate'. It is an admitted position that the C.I.A. is part of the Police Force. It is a tact a special branch carved out from the police force for special purpose. The violation of section 156(1) of the Cr.P.C. may not vitiate trial if no serious pre judce has been caused to the accused person concerned resulting in miscarriage of justice in view of above sub section (2) of section 156, Cr.P.C., but it does not mean that the C.I.A. personnel should knowingly violate the above provision of the Cr.P.C. On the contrary, they are legally duty bound to ensure the supremacy of law. " Indeed, in view of the above observation and the decision of Full Bench of this Court the investigation conducted by Sub‑Inspector of police or for that matter the challan submitted by him, are irregularities would not vitiate the entire proceedings and at least the same could not at the earliest stage serve as a ground for the purpose of bail. On perusal of the impugned order we have found that the merits of the case have at all not been touched by the trial Court and the sole ground as discussed above was the observation made in para. 5 of the said order regarding the competency of the Sub‑Inspector for the purpose of investigation of the case which, we have not been persuaded to endorse. In result of the above discussion, it is concluded that the order suffers from a patent illegality and is accordingly set aside and the bail granted to the respondents is hereby cancelled. However, while passing this order we leave it open to the trial Court to consider afresh the plea of bail on behalf of the respondents on merits of the case. With these observations the application is allowed. Respondents are not present. The trial Court may take them into custody and take further proceedings in accordance with law. H.B.T./S‑75/K Bail cancelled.