2003 P Cr (PLP)

MUHAMMAD SADIQ LEGHARI, J.

Prosecution alleges that Waqar Khan while being in custody of Anti-Car Lifting Cell in the case registered as Crime No.38 of 2002 under sections 420, 468 and 421 volunteered to produce Charas and 80 bottles of liquor concealed at his house. He led A.S.-I. Safdar Khan and other staff of ACLC on 27-3-2002 at 4-00 a.m. to his house and voluntarily produced 10 pieces of Charas lying under the bed sheet and 80 bottles of liquor available under the cot. The weigh. of Charas was about two and half Kgs. The stuff was seized under the Mashirnama. After that case for offence under sections 6/9(c), C.N.S. Act read with Articles 3/4 Prohibition (Enforcement of Hudood) Order, 1979 was registered at Sharafi Goth Police Station.

2. Bail plea of the applicant could not succeed before the learned trial Court, therefore, present application has been filed.

3. Applicant's learned Advocate contended that in fact the recovery is said to have been made from the house of the applicant but no search warrant was obtained from the competent Court. Secondly that F.I.R. was registered about 17 hours after the alleged recovery when the distance between the place of recovery and Sharafi Goth Police Station was only two Kms. He also contended that the seized stuff' was dispatched for chemical examination many days after its recovery days which delay makes the entire recovery doubtful. He also contended that the offence of possessing two and half Kgs. Charas is punishable with imprisonment of five years under Prohibition Order and is punishable with death under C.N.S. Act, therefore, the law providing lesser penalty has to be applied.

4. The learned A.A.-G. opposed the bail plea by defending the order of the learned trial Court saying that no search warrant was necessary as the Charas was produced by the applicant himself. He also contended that the provisions of C.N.S. Act have overriding effect and all offences relating to Narcotics Substance are to be tried under C.N.S. Act. According to him delay, if' any, in registration of the F.I.R. and dispatch of the stuff to flee expert is not material.

5. Since the recovery is said to have been made at the pointation of applicant/accused himself by leading the police party to the place of A recovery, it was not search of the place. The contentions of the learned A.A.-G. on the point of application of the provisions of C.N.S. Act have substance in them. Proviso to section 72, C.N.S. Act deals with the trial of the offences falling under that law and under any other law for the time being in force. It reads as under:-- "Provided that, notwithstanding anything contained in the Customs Act, 1969 (IV of 1969), or any other law for the time being in force; all offences relating to narcotics drugs, psychotropic substances or controlled substances shall be tried under the provisions of this Act."

6. The proviso makes it clear that an offence relating to narcotics could be tried only under the provisions of C.N.S. Act in a Court 113 established thereunder to the exclusion of the Court established under any other law. On this point, pronouncement of the Honourable apex Court reported as State through Collector of Customs v. Nasim Arnir Butt and others 2001 SCMR 1083 furnishes sufficient guidance.

7. Section 74 of the C.N.S. Act clarifies the position about awarding the punishment for the offence punishable under C.N.S. Act and also under any other law for the time in force. It reads as under:-- "Application "Application of other laws.

If an offence punishable under this Act, is also an offence in any other law for the time being in force nothing in that law shall prevent the offender from being punished under this Act: Provided ..........................................................................

8. The provision clearly says that if' the offences punishable under C.N.S. Act are also punishable under any other law for the time being in force nothing in that law will prevent awarding of punishment to the offender under C.N.S. Act.

9. It is correct that C.N.S. Act authorizes Sub-Inspector for, effecting the seizure, search and arrest and in some of the cases related to narcotics the seizures are made by A.S.-I. but that will not affect the powers and the jurisdiction of the Court to try that case. If law requires to the seizure or arrest and investigation by an officer of superior rank and the actual arrest or investigation has been effected/conducted by the Police Officer inferior to that rank it is curable irregularity. If a Police Officer of the inferior rank recovers narcotics substance on the pointation of a person in his custody such seizure cannot be treated valueless. It is never the intention of the law to reduce to nullity any material evidence only for non-compliance with the requirement of rank. The scheme of the law is always to check the criminals and control the crimes. Treating the evidence of quality as nullity for having been obtained by the officer of the status inferior to the officer required to do that act will amount defeating of the scheme for technical reason. The technicalities are not to be permitted to stand in the way of the object and scheme of the law. It is the object, which has to be achieved. If some substantial act is performed towards the achievement of the object in the way not exactly as required by the provisions that does not become valueless. The view gets support from highly qualitative opinion delivered by Honourable Supreme Court of Pakistan and India on this point in the pronouncement in The State v. Muhammad Hussain HNR Rishbed and others v. State of Delhi reported respectively in PLD 1968 SC 265 and AIR 1955 SC 196.

10. Thus such irregularity in the process of seizure, arrest and investigation does not affect the intrinsic quality of the evidence or the competency and authority of the Court to try that offence it it is competent to try the same otherwise. Such irregularity never vitiates they trial proceedings and. results thereof.

11. The delay if any in the dispatch of the stuff to the expert is not material specially when the defence comes out with clear denial of the, recovery of anything from the applicant/accused. When the defence alleges the arranging of the stuff and preparation of the parcel, if any by the seizing authority or agency themselves, then the allegation of tempering with the stuff or substance thereof is ridiculous. The entire debate and discussion in this respect was set at rest finally by delivering the weighty opinion through the judgment in Tasliem Khan v. The State PLD 1990 SC (Shariat Appellate Bench) 1088. It was clearly held in that judgment that when defence denies the recovery of anything from them/him, the delay in dispatch of the stuff to the expert is not material.

12. After recovery, the report was sent to Police Station Sharafi Goth for registration of the case. The delay, if any, has to he explained during the trial. Even otherwise when the offender is claimed to have been in custody the delay, even it' it is there, is not of much significance for the purpose of bail. In view of above assessment of the material. which is definitely of tentative nature, the applicant/accused does not deserve the concession of bail. The application is dismissed. N.H.Q./W-31/K Bail refused.