ABDALI SHAH vs STATE

ORDER

1. Granted subject to all just exceptions.

2. By this order I intend to dispose of Criminal Bail Application No, 902 of 2007, filed on behalf of Applicant, Abdali Shah, in a case bearing F.I.R. No, 20 of 2007 of P.S. SITE Karachi for offence under Sections 6/9 of Control of Narcotic Substances Act, 1997.

2. The bail plea of the applicant was dismissed by the learned trial Court vide Order dated 27-9-2007.

3. The facts germane to the prosecution case are that on 23-1-2007 at about 5-00 p.m., while P.C.

4. Imtiaz Ahmed along with P.C. Javed Ahmed posted at P.S. SITE were on patrol duty and when they reached near Philips Factory SITE area they saw two persons standing outside a taxi Bearing No, JN 2136. Having a look at Police personnel both the culprits tried to run away, however, one of them was intercepted and the second one made his escape good. When the diggi of the taxi was checked, two cartons with 15/15 packets, each, and one carton of 12 packets in all having 52 Kgs.

5. Charas were recovered. Upon enquiry the said person disclosed his name as Abdali Shah (Applicant herein) and informed that the person who ran away was Abdullah by name. The applicanVaccused along with the taxi and charas was brought to the Police station where S.-I, Bakht Jamal prepared a Memo. of arrest and recovery at the Police Station and F.I.R. as above, was registered.

6. The investigation followed and in due course the applicant was sent up to stand trial before the Court of Law.

7. I have heard Mr. Raza Hashmi, learned counsel for the applicant, and Mr. Zubair Qureshi learned A.A.-G. on behalf of the State. It has been contended by the learned counsel for the applicant that Sections 21 and 22 of CNS Act, 1997 clearly define that no Officer below the rank of Sub-Inspector can raid, search and arrest any person involved under this Act and any action, taken by an Officer below the rank of Sub-Inspector, shall make the proceedings null and void. He has relied upon the cases of Nasrullah v. The State PLD 2001 Pesh. 152, Gharibullah v. The State 2002 PCr.LJ 677 and Muhammad Yaseen's case 2004 YLR 1303 in support of his above contention.

8. It has further, been contended that there is clear violation of proviso 4 of Article 18 of Police Order, 2002, which defines that all registered cases shall be investigated by the Investigating Staff in the District under the supervision of Head of Investigation provided that the Government may, by a Special or General Order, entrust investigation of offences under local and special laws as defined in Pakistan Penal Code and punishable with imprisonment for the term not exceeding three years with or without other punishment to the Police Station Staff. It has been pointed out that surprisingly the investigation in this case was conducted by the Police Official, posted at P.S. SITE Karachi and not by the Investigation Branch of Police, which too attracts the proviso of Article 155(c)(d) of the Police Order, 2002. While relying upon the case of Muhammad Farooq and others, v. The State 2007 PCr.I.,J 1103 it has been contended that para.23 of the Standing Order No, 208 of 2005 dated 21-2- 2005 issued by the P.P.O. Sindh Karachi was found to be without jurisdiction and illegally issued hence cannot be acted upon, therefore, a copy of the order was directed to be sent to the P.P.Q.

9. Sindh Karachi for issuing necessary instructions to the Police Station Staff for acting upon such Standing Order and restraining, them from investigation of the offences covered by the said Standing Order. Consequently, all the investigation of such cases, which are pending before the Police Station Staff, stood transferred to Investigation Branch of Police. Resultantly, in the said case, bail was granted to the accused.

10. It has, also, been contended by the learned counsel that Mashirnama of arrest was prepared at the place of incident as such as per the memo. of recovery, placed on record, the case is seriously doubtful in nature. It has, further, been contended by the learned counsel that no recovery has been personally effected from the possession of the accused. Even the taxi from where the recovery has been shown to have been made does not belong to the applicant. Moreover, no independent witness of the locality has been cited in the memo. of arrest or recovery.

11. On the other hand, learned A.A.-G. though apposed the grant of bail to the applicant but could not controvert the legal position as envisaged under Sections 21 and 22 of the Control of Narcotic Substances Act, 1997 and proviso 4 to Article 18 of Police Order, 2002.

12. I have given my anxious consideration to the arguments of the respective parties and perused the record.

13. A bare reading of Sections 21 and 22 of CNS Act, 1997 reveals that no Officer below the rank of Sub- Inspector can raid, search and arrest any person involved under this Act and any action, taken by any Officer below the rank of Sub-Inspector, shall make the proceedings null and void. Moreover, a minute perusal of papers takes me to observe that violation of proviso 4 of Article 18 of Police Order, 2002, which defines that all registered cases shall be investigated by the Investigating Staff in the District under the supervision of Head of Investigation provided that the Government may, by a Special or General Order, entrust investigation of offences under local and special laws as defined in Pakistan Penal Code and punishable with imprisonment for the term not exceeding three years with or without other punishment to the Police Station Staff on the face of it has made. Surprisingly, the investigation in this case was conducted by the Police Official, posted at P.S. SITE Karachi and not by the Investigation Branch of Police which too attracts the proviso of Article 155(c)(d) of the Police Order; 2002: In the case of Muhammad Farooq (supra) it has been held that para. 23 of the Standing Order No,208 of 2005 dated 21-2-2005 issued by the P.P.O. Sindh Karachi was found to be without jurisdiction and illegally issued, hence cannot be acted upon, therefore, a copy of the order was directed to be sent to the P.P.O. Sindh Karachi for issuing necessary instructions to the Police Station Staff for acting upon such Standing Order and restraining them from investigation of the offences covered by the said Standing Order. Consequently, all the investigation of such cases, which are pending before the Police Station Staff stood transferred to Investigation Branch of Police. Resultantly, in the said case, bail was granted to the accused. Record further reveals that mashirnama of arrest was prepared. At the place of incident as nth as per the memo of recovery placed on record, which creates doubt in my mind. Furthermore, no recovery has been personally effected from the possession of the accused. Even the taxi from where the recovery has been shown to have been made does not belong to the applicant. In view of these circumstances, I have option but to grant bail to the applicant which is accordingly granted subject to his furnishing surety in the sum of Rs, 2,00,000 (Rupees two lacks only) and P.R. Bond in the like amount to the satisfaction of trial Court.

14. Criminal Bail Application No, 902 of 2007 stands disposed.