2007 PLP 1022 (YLR)

RAHMAT HUSSAIN JAFFERI, J.

This order will dispose of Criminal Bail Applications Nos.1140 of 2006 and 15 of 2007, as common questions of facts and law are involved and arising out of one and same F.I.R. bearing No.233 of 2006 of Police Station, Mauripur, Karachi. Brief facts giving rise to the present bail applications are that the complainant A.S.-I., Nawaz Ali Zardari along with his subordinate staff was busy in checking vehicles at Mochko Check Post where he was posted. He found a Coach coming from Hub, which was stopped. He found two persons sitting in suspicious condition, therefore, they were un-boarded from the vehicle. On enquiries, they disclosed their names as Noor Muhammad and Muhammad Yousaf (present applicants). From their personal search two kilograms of opium were secured from each of the applicants. Samples were drawn from the properties, which were sealed. The applicants were arrested and brought to the police station, where F.I.R. was lodged. The applicants filed bail applications before the trial Court, but the same were dismissed, hence the present applications. We have heard Advocate for the applicants, A.A.-G. for the State and perused the facts and law involved in this case very carefully. The learned Advocate for the applicants has stated that the applicants were searched and property was allegedly recovered by the complainant, who was A.S.-I., therefore, he was not competent to do so in view of the provisions of sections 21 and 22 of Control of Narcotic Substances Act, 1997; that the said provisions are mandatory, which have been violated, therefore, the applicants are entitled to the concession of bail. He has relied upon a Full Bench decision of Peshawar High Court in a case of Nasrullah v. The State PLD 2001 Peshawar

152. He has further stated that opium was foisted upon the applicants; that the applicants were travelling in the Coach which reached at 8-00 a.m. in the morning as per ticket issued to one of the applicants that has been produced; and that the applicants were kept in confinement and then involved in this case. Conversely, the learned A.A.-G. has stated that the defect in the proceedings does not vitiate the trial. He has relied upon the case of Muhammad Hanif v. The State 2003 SCMR 1237. He has further stated the Coach might have been delayed, therefore, the ticket as produced by the applicants supports the prosecution's case; that the said point is subject to the cross-examination to the witness, who will be - produced the same in defence; that the witnesses have fully supported the case, therefore, he has strongly opposed to the grant of bail. We have given due consideration to the arguments and gone through the provisions of sections 21 and 22 of Control of Narcotic Substances Act, 1997. The provisions of section 21 of the Act are applicable in a case when an officer below the rank of Sub-Inspector of Police received information from any person or persons about the presence of narcotic drugs in a place, building, premises or conveyance then he cannot enter such place etc. and arrest the person without a warrant and permission of Federal Government or the Provincial Government as the case may be. In the present case the complainant did not act upon his personal knowledge or information received from any person about carrying of narcotic drugs in the vehicle, but under the orders of the superior he was checking the vehicles and from that checking, he found two persons available in the Coach, who were found to be sitting in suspicious manner. The incident took place within the jurisdiction of Police Post Mochko where A.S.-I. was Incharge of the said post, as such, there was no superior officer available at the said place. Under the normal law as provided under section 54, Cr.P.C. any police officer can arrest a person subject to condition of fulfilment of the circumstances mentioned therein. Furthermore, section 59, Cr.P.C. authorizes any private person to arrest a person, if a cognizance offence is committed within his view. Subject to the condition that the accused should be produced before a nearest police station and then the police will arrest the accused under section 54, Cr.P.C. In the present case, the complainant was A.S.-I. within his view, cognizable offence was committed, therefore, apart from his own powers of section 54, Cr.P.C. he can arrest a person under section 59, Cr.P.C. even if he was not authorized to conduct the investigation or search under section 21 of Control of Narcotic Substances Act, 1997. Further the applicants were arrested on the spot. The A.S.-I. produced them at police station, lodged the F.I.R. and then the investigation was conducted by Sub-Inspector, Abdul Ghaffar Shah, who was competent to investigate the case, as such, there is no illegality in arresting the applicants and seizing the property. Even otherwise, if the investigation is conducted by an unauthorized officer then section 156(2), Cr.P.C. will protect such proceedings. When the case is challaned and after taking cognizance by the Court then the irregularity in the investigation would not effect the trial, as such, the trial would not be vitiated as held by the Honourable Supreme Court of Pakistan in the case of Muhammad Hanif v. The State 2003 SCMR 1237. As regards the merits of the case, the case is fully supported by the P.Ws. and corroborated by the Chemical Analyzer's report. As regards the ticket, same has not yet been produced in evidence. This is a defence plea which can be properly appreciated after production it before the trial Court. Learned A.A.-G. has stated that the ticket has supported the prosecution's case. Without commenting upon on the said piece of evidence we leave it open for the trial Court to decide the said question in accordance with law. After considering the material available on the record, we are of the considered view that the applicants are not entitled to the concession of bail, therefore, the applications are dismissed. H.B.T./M-19/K Bail refused.