ZUBAIR Alias NANA vs THE STATE

ORDER

Since all these bail applications have arisen out of Crime No.4 of 1992, Liaquatabad P.S. Under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979, they are being disposed of by a consolidated order.

2. On 2-1-1992, Muhammad Naseeruddin Ansari, S.H.O. Liaquatabad P.S., was patrolling alongwith his subordinate staff in a mobile van when at 2-30 p.m. He noticed the present applicants standing near Junk Yard in suspicious circumstances. All of them were detained and were subjected to personal search in presence of Tohid, Mst. Aasia and Raees Ahmad, which led to recovery of 250 grams of powder of heroin from the possession of each of them. The usual samples were drawn and such inventory was prepared. The applicants were then taken into custody and a formal F.I.R.

Was registered against them. The samples so drawn were sent to Chemical Examiner, Karachi, who certified them to 'be identical with heroin (Diacetyle Morphine). After usual investigation the applicants were sent up to stand trial for the offence under Article 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979. The applicants applied for bail before learned IIIrd Additional Sessions Judge (Central) Karachi, (Miss Mah Jabeen), but without success. It is in these circumstances that the applicants have approached this Court for bail by filing separate applications under section 497, Cr.P.C.

3. I have heard Mr. Abdul Waheed Siddiqui, learned counsel for applicants and Mr. KM. Nadeem, learned A.A.-G. For State. The latter has opposed the bail applications.

4. The perusal of record shows that the offence against the applicants, if any, will fall under Article 4 of the Prohibition (Enforcement of Hadd) Order, 1979, which in the circumstances of the present case where the quantity of the powder of heroin exceeded ten grams, is covered by the prohibitory clause of section 497, Cr.P.C. The learned counsel for the applicants has consumed his entire energy in contending that the police had no powers to investigate, arrest and prosecute the applicants, as such powers are available to Prohibition officers, appointed under Article 21 of the Prohibition (Enforcement of Hadd) Order, 1979, alone. The learned counsel for applicants should have known that a complete answer to this contention is provided by the cases reported as The State v. Abdul Majeed and others 1984 SCMR 392, Noorul Islam v. The State 1986 SCMR 1836 and The State v. Sohail Ahmad and others PLD 1990 FSC 29. In the first-cited authority the Shariat Bench of the Supreme Court after examining the relevant provisions of law made the following observations:-- "As for the police officer, it is hardly necessary for him to forward the arrested person to the Prohibition Officer as he himself has also the necessary powers under Chapter XIV of the Code to deal with the matter, by virtue of Article 27(1) of the Order whereby the provision of the Code was made applicable mutatis mutandis to the offences under the Order ...."

5. In the second cited judgment the Supreme Court of Pakistan answered similar objections in the following words:--- "As regards the first contention, suffice it to say that the proposition of law is well-settled that an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court. The fad that the learned trial Court had the requisite jurisdiction in the matter was not disputed by the learned counsel."

6. I may also usefully borrow the terse observation of Ibadat Yar Khan, J. (as he then was) made in the last-cited judgment in the following words:-- "To sum up, the position of law is that lack of authority in the investigating agency may at the most provide a cause of action to the aggrieved party against the police officer concerned, it would have no bearing so far as the trial is concerned. The trial would proceed according to law on the basis of the evidence placed before the Court for adjudication."

7. Coming now to the question whether Mst. Aasia who acted as one of the Mashirs of recovery was not a competent witness within the meanings of Article 3 of the Qanun-e-Shahadat, 1984, it may be observed that even if her statement is left out of the account there are still two Mashirs who may testify against the applicants.

8. Mr. Abdul Waheed Siddiqui, learned counsel for applicants has made various other Submissions, all devoid of force and subtle, which have been made with a cheerful disregard of settled rule of law that a deeper examination of evidence and elaborate documentation of the merits is to be avoided while deciding bail applications.

9. No use for bail is made out and the applications made under section 497, Cr.P.C. On behalf of applicants are accordingly dismissed.

10. By short orders dated 8-6-1992 I had dismissed all the above bail applications. These are the reasons for the said orders.

N-H.Q./Z-185/K