JEHANZAB KHAN and 3 others vs THE STATE

ORDER

1. M. ASHRAF LEGHARI, J.--- This revision application is directed against the order, dated 15-7-1999, passed by Sessions Judge, Karachi (West), arising out of F.I.R. No,197 of 1998 under section 3/4 of Prohibition (Enforcement of Hadd) Order, 1979, registered at Police Station TPX, Karachi.

2. A.S.-I. Ajmal Awan registered the F.I.R. On behalf of State disclosing that on 9-8-1998 he alongwith Inspector Syed Niaz Hussain Shah, S.-I. Arshad Afridi and other mobile staff of said police station received spy information that narcotic peddlers will carry. Charas in a Suzuki pick up from Sabzi Mandi to Kaemari, Shireen Jinnah Colony, Karachi. On such information they procured attendance of two Mashirs and remained vigilant. At about 12-10 hours they noticed Suzuki pick-up in which three persons were seated, coming from Sultanabad and on the pointation of informer it was stopped at Signal Mai Kolachi Road, which took a turn towards boat basin. Persons sitting in the Suzuki pick-up alightened and tried to escape from the scene but two persons namely Jehanzeb Khan and Zakirullah were apprehended On the spot, whereas third person managed to make his escape. Suzuki was searched and the police recovered four red colour bags wrapped into plastic bags on which Dewan Sugar Mills was inscribed. On opening the said bags about 160 Kgs. Charas was recovered. The recovered Charas and the pedlers/accused were taken into custody.

3. The police took up investigation and submitted interim challan in the Court of Special Judge (Control of Narcotic Substances Act), 1997, Karachi (West) on 29-8-1998. On 4-9-1998, another challan was submitted by police under Article 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 before the learned Vth Judicial Magistrate. This fact of another challan before Judicial Magistrate was brought to the notice of S.S.P., Karachi (West) and then third challan was submitted by police on 3-10-1998 under section 9(c) of C.N.S.A., 1997, before the Court of Special Judge (C.N.S.A.). In between that period on 8-9-1998 learned Vth Judicial Magistrate, Karachi, hurriedly and purposely granted bail to the accused Jehanzeb Khan and Zakirullah. He also allowed bail to absconder Israr and Bakhtiar on 19-9-1998, on their surrender. The aforesaid accused have been issued notices by learned Special Judge (C.N.S.A.) as to why. Their bail should not be cancelled. The record further reveals that S.S.P., Karachi (West) had suspended Inspector Syed Niaz Hussain Shah, the Investigating Officer in this case for making hanky panky in the investigation.

4. It is contended by the learned counsel for the applicant that since challan was submitted under Article 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 before the learned Vth Judicial Magistrate, therefore, the case may be transferred to him for trial as according to him the police had no power to submit a fresh challan in the Court of Special Judge (C.N.S.A) Karachi (West).

5. Learned counsel submitted that under section 21 of Control of Narcotics Substances Act, 1997 Assistant Sub-Inspector was not empowered to recover the said Charas. The learned counsel has also agitated before us that learned Sessions Judge was not empowered to receive the challan directly and, therefore, according to the learned counsel, the matter may be transferred to Judicial Magistrate as stated above.

6. Syed Jalil Ahmed Hashmi, learned A.A.-G., for the State has contended that the Charas was recovered by Inspector Syed Niaz Hussain Shah, who was the Investigating Officer of this case and because of the discrepancies on his part, he was placed under suspension by S.S.P. (West) on 28- 9-1998. It is further contended that huge quantity of 160 Kgs. Of Charas was recovered from the possession of drug pedlers and that even if the challan is wrongly submitted under Article 3/4 of Prohibition (Enforcement of Hadd) Order, 1979, it would be triable by the Judge, special Court and not before the Judicial Magistrate. So far the third contention of learned counsel is concerned, it is argued by the learned A.A.-G. That the discrepancies or irregularities which are committed by the police during investigation would not affect the ultimate result of the trial. The reference may be made to a case of Gulzar Ahmed v. The State 1993 PCr.LJ 185. On examination of the impugned order, dated 15-7-1999, passed by the learned Sessions Judge, Karachi (West) we find that although the police had favoured the accused in order to get them released on bail and they had succeeded to achieve that object but later on this fact came to the knowledge of S.S.P. (West) who placed the Investigating Officer under suspension and the challan was subsequently, submitted before Special Court (C.N.S.A.) under section 9-C of Control of Narcotic Substances Act, 1997. The contents of F.I.R. Further reveal that the recovery was not made by Assistant Sub-Inspector but the alleged contraband Charas was recovered by Inspector Syed Niaz Hussain Shah and, therefore, there is no violation of provisions of the Act. The contention that case is triable by Judicial Magistrate has no force as huge quantity of contraband Charas was recovered from the accused and offence is triable by the Judge, Special Court under section 9 of Control of Narcotic Substances Act, 1997.

7. Even otherwise the challan can at any time be returned to police for presentation before the Court having jurisdiction. We find that no illegality is committed by submitted the challan in the Court of Judge, Special Court and no prejudice is caused to accused.

8. The learned counsel for the applicants Mr. M. Qadir Khan, has placed reliance on the following citations in support of his arguments advanced by him:--

(i) Muhammad Alam v. Additional Secretary to Government of N.-W.F.P. And 4 others PLD 1987 SC 103,

(ii) Mehar Khan v. Yaqub Khan and another 1981 SCM R 267, and

(ii) The State v. Muhammad Ashraf (unreported decision of this Honourable Court in Criminal S.M.

9. Revision No,10 of 1998.

10. The authorities cited by the learned counsel for the applicants are based on different footings and are distinguishable from the facts and circumstances of the instant case.

11. The upshot of the above discussion is that the order passed by the learned Sessions Judge, Karachi

(West) is judicial, well-founded and does not suffer from any illegality, irregularity and/or infirmity.

12. Accordingly, this application is dismissed alongwith M.A. No,105 of 1999.