THE STATE vs ABDALI SHAH

' SARMAD JALAL OSMANY, J.--- This petition for leave to appeal impugns the order, dated 16-11-2007, passed by the learned Sindh High Court, whereby Criminal Bail Application No,902 of 2007 was allowed and the respondent enlarged on bail.

2. As per the report of the learned Special Judge (C.N.S.), Karachi, dated 24-10-2008, the respondent was served on 23-10-2008 to appear before us on 27-10-2008 when the matter was earlier fixed. Today there is no representation on his behalf.

3. Briefly stated the facts of the matter are that while a police party was on patrol duty on 23-1- 2007 at about 5-00 p.m. In the S.I.T.E. Area Karachi, they saw two persons closing the dickey of the taxi who tried to escape upon observing the police personnel. One of them was taken into custody and when the taxi was searched two cartons with 18/15 packets each and one carton of 12 packets in all weighing 52 Kgs. Of Charas were recovered. Upon the inquiry, the apprehended person, disclosed his name as Abdali Shah and the person who made his escape good as Abdullah by name. The accused along with the taxi and Charas was brought to the police station, where S.-I.

Bakht Jamal prepared the memo. Of arrest and recovery as well as registered the F.I.R.

4. According to learned Prosecutor-General, the merits of the case have not been discussed at all by the learned High Court and on technicalities which again does not find support per settled case-law. In this regard, learned Prosecutor-General has submitted that the first ground which prevailed with the learned High Court was that the Seizing Officer was below the rank of A.S.-I. And hence the entire process was in violation of section 21 of the C.N.S. Act. In this regard, he has submitted that section 21 of the C.N.S. Act only pertains to a raid and not to recovery made during normal patrol duty as in the present case. Learned Prosecutor-General has also submitted that at the most the arrest of the respondent/accused by an officer below the rank of A.S.-I. Was only an irregularity and can be cured under section 537, Cr.P.C. As it had not caused any prejudice to the accused. For this proposition, he has referred to Muhammad Hanif v. The State 2003 SCMR 1237.

5. Secondly, per learned Prosecutor-General the other factor which prevailed with the learned High Court was that there was a violation of proviso (4) of section 18 of the Police Order, 2002, according to which all registered cases should be investigated by the investigating staff in the District, whereas, in the present case, the investigation was conducted by a police official posted at Police Station S.I.T.E. In this regard, learned Prosecutor-General has again submitted that where the investigation has not caused any prejudice to the accused, then the same carried out by an official who was not competent to investigate the matter would at most amount to an irregularity which was again curable under section 537, Cr.P.C. In the present case, the respondent/accused was apprehended beside the taxi from which a huge quantity of Charas viz. 52 Kgs. Was recovered and hence the investigation carried out by the police officials of Police Station S.I.T.E. By whom recovery was made could hardly prejudice the respondent. Learned Prosecutor-General has further submitted that per section 156(2), Cr.P.C. Investigation carried out by an unauthorized Police Officer is curable under section 537, Cr.P.C. Being an irregularity at the most. In support of his proposition, he has relied upon Muhammad Idrees v. The State PLD 2006 Lah. 780 as well as State through Advocate-General v. Bashir PLD 1997 SC 408.

6. We have heard learned Prosecutor-General.

7. It would be seen that a huge quantity of 52 Kgs. Of Charas was I allegedly recovered from the taxi beside which the respondent was standing while closing its dickey. It is not possible that the police would foist such a huge quantity of Charas upon him. It appears that the learned High Court has relied heavily upon the technical aspect of the seizure and arrest which in our opinion are misconceived as in the first place no raid was carried out by the police personnel but the respondent apprehended during normal patrol duty. As such the provisions of section 21 are not applicable. Even otherwise it cannot be expected that upon apprehension of the accused the police party would go in search of the officer, who is entitled to arrest the accused being an A.S.-I.

At the most, this was an irregularity which was curable under section 537, Cr.P.C. As held by this Court in the case of Muhammad Hanif (supra).

8. Similarly, the second ground which weighed with the learned High Court that the investigation was not carried out by an official authorized to do so, also is devoid of substance, since no prejudice has been caused to the respondent by such investigation. The case of Muhammad Farooq Khan v. The State 2007 PCr.LJ 1103 relied upon in the impugned order is distinguishable from the facts of the present case as therein mala fides were alleged against the investigative agency in which event a learned Division Bench of the Sindh High Court came to the conclusion that the investigation should have been entrusted to another agency. In this regard, the reference can be made to the case of State through Advocate-General v. Bashir (supra), wherein it was held that investigation by an officer not authorized to do so was merely an irregularity which is curable under section 537, Cr.P.C.

9. For all the foregoing reasons, we would convert this petition into an appeal and allow the same.

The impugned order is set aside and the bail given to the respondent/accused is cancelled.

Bail cancelled. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.