1999 P Cr (PLP)

MRS. KHALIDA RACHID, J.‑‑‑ The petitioner is the accused in case F.I.R. No.405, dated 7‑7‑1998, Police Station Lund Khwar under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 and section 9 of the Control of Narcotic Substances Act, 1997.

2. On 7‑7‑1998 at 13‑00 hours the local police of Police Station "Lund Khwar" during the course of a routine "Gasht" duty noticed petitioner Qimat Hassan coming from Dargai area in a suspicious condition. Sighting the police party the petitioner tried to flee but he was apprehended after a short chase. On search contraband Charas weighing 2000 grams was recovered from the plastic bags carried by him. He was arrested and booked under Article 3/4 of the Prohibition Order. Section 9, C.N.S.A. was also added later on.

3. The unsuccessful attempt before the lower forum obliged the petitioner to approach this Court with the present application.

4. Mr. Sikandar Khan, learned counsel for the petitioner prayed for the release of the petitioner on bail on two‑fold grounds, firstly, that the provisions of C.N.S.A. are not attracted in this case as the arrest and seizure was made by an A.S.‑I. who is not the Authorized Officer in terms of section 21 of C.N.S:A. In this context reference is made to 1996 Pakistan Criminal Law Journal page

608. It is further argued that the A.S.‑I. who had arrested the petitioner and registered the case has also acted as an Investigating Officer in the case which rendered the case illegal and thus, would vitiate the trial. For the proper appreciation of the contention of the learned counsel for the petitioner we deem it proper to reproduce section 21 of the C.N.S.A. which reads as under:‑‑ Section

21. Power of entry, search seizure and arrest without warrant.‑‑ (1) Where an officer, not below the rank of Sub‑Inspector of Police or equivalent authorized in this behalf by the Federal Government or the Provincial Government, who from his personal knowledge or from information given to him by any person is of opinion that any narcotic drug psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed is kept or concealed in any building, place, premises or conveyance, and a warrant for arrest or search cannot be obtained against such person without affording him an opportunity for the concealment of evidence or facility for his escape, such officer may‑‑ (a) enter into any such building, place, premises or conveyance; (b) break open any door and remove any other obstacle to such entry in case of resistance; (c) seize such narcotic drugs, psychotropic substances and controlled substance and other material used in the manufacture thereof and any other article which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under this Act, and (d) detain, search and if he thinks proper, arrest any person whom he has reason to believe to have committed an offence punishable under this Act. (2) Before or immediately after taking any action under subsection (1), the officer referred to in that subsection shall record the grounds and basis of his information and proposed action and forthwith send a copy thereof to his immediate superior Officer."

5. The plain reading of the language employed in subsection (1) of this section suggests that an officer, not below the rank of Sub‑Inspector, can do away with the warrant of arrest and search where there is apprehension of the concealment of evidence or escape of the accused person before taking any of the steps or action enunciated in clauses (a) to (d). It can no way be inferred that where the seizure or search is made by an official below the rank of Sub- Inspector, of course without prejudicing the case of an accused person, would render the cognizable case totally illegal and infirm. Furthermore, provisions of section 21 are directory and not mandatory in nature, therefore, this could very conveniently be treated as irregularity which may not be stretched to the extent to render it illegal and fatal to the prosecution specially in the cases of heinous offences like the one in hand. However, we direct that the concerned Department to educate themselves in the relevant provisions of law, before initiating any action against an accused person. There should be process of continuous training to the officials of the concerned agencies to apprise them of the recent changes in law in order to avoid any such shortcomings. Hence in the cited authority PCr.LJ 1996 page 608 we are not persuaded to subscribe to the view taken by Honourable Judges notwithstanding the concession made by the learned A.A.‑G. to the grant of bail on the ground of cognizance of the case by a low ranking official. Similarly there is no legal prohibition or restriction under the law for a Police Officer to be a complainant and also to be an Investigating Officer as so long as his action or his investigation is not resulted in a miscarriage of justice. In this respect reference may be made to PLD 1997 SC 408.

6. Furthermore, the offence under Article 3 of the Prohibition Order is punishable with imprisonment of five years, the bail of which cannot be claimed by the petitioner as of right. In such heinous offences, extending the concession of bail to the petitioner would amount to injustice to the society at large as there is always an apprehension of repetition of the offence.

7. It is next argued that the report from the laboratory has not been received so far, therefore, it is yet to be determined that the seized substance was in fact Charas. The non‑receipt of report in time, no doubt, manifests the inefficiency on the part of the prosecution but in no way an adverse inference can be drawn in favour of the petitioner who is engaged in an ugly business of drug trafficking which has become a constant source of destruction for the humanity. This drug mafia people who have least sympathy for the youth and young generation of the country do not deserve any leniency even at this early stage of bail. It was for these reasons that a stricter law in the shape of C.N.S.A. was enacted and enforced to control the spread and penetration of drugs in the society. Consequently, we decline the petition. However, we direct the prosecution to submit challan in the Court within 'a period of two weeks time. N.H.Q./266/P Bail refused