' On 2-4-2005 vide Roznamcha Entry No.17, applicant Allandino Rajar, who was Assistant Sub- Inspector, along with subordinate staff left Police Station Khipro at 2025 hours for patrolling, followed a vehicle and managed to stop it and on its search, recovered 74 pieces of Charas weighing 750 grams from under the driving seat, apprehended one Anwarzada son of Zameer Khan Pathan in presence of Mashirs, took out 10 grams from the seized Charas and sealed the same for Chemical Analysis. Also sealed the remaining Charas separately and took the vehicle in custody under section 550, Cr.P.C.
2. The property so secured and the said accused Anwarzada were brought at Police Station and F.I.R. Bearing No.34 of 2005 was lodged under section 9(b) of the Control of Narcotic Substances Act on behalf of State. Subsequently, on completion of investigation the said accused was forwarded to stand his trial.
3. Later on an application for grant of bail on behalf of accused, statement of one Abdul Hakeem, a noble person (Nek Mard) was recorded by learned Sessions Judge. In the said statement recorded on oath it was stated as follows:- "A.S.-I. Allandino Rajar is known to me since long being the resident of Khipro and he is my caste- fellow. A.S.-I. Allahino is posted at Police Station Khipro probably for about six months. After the accident, the vehicle had gone and it did not stop. The injured boy was given first treatment at Khipro, where he remained 2/3 days in hospital. Thereafter he returned. Some old Pathans came and they settled the matter with them. The present accused was not accompanying them. He does not know anything about the recovery of Charas from vehicle of the present accused. He had not visited Police Station Khipro after his return from Hyderabad after the treatment of injured boy. The A.S.-I. Was present when they came to police station for report regarding the accident."
4. Statement of applicant Allandino Rajar who was complainant/Investigating Officer in the above crime was also recorded. It was stated by him in the said statement recorded on oath, as follows:-- "On 2nd April, 2005, he came on duty at Police Station Khipro at 8-00 a.m. He was on duty when Abdul Hakeem came for report regarding the accident of boy Mohan son of Jeewan Mal. On that date, there was strike call of MMA, therefore, S.H.O. Was on patrolling duty at Khipro Town and he was present at Police Station Khipro. He had given the letter for treatment of injured boy. The injured boy was then referred to Hyderabad for further treatment. Thereafter, he does not know what had happened. He was on patrolling duty when at 2100 hours. He had arrested the present accused along with the Datsun Pickup of white colour. The accused was arrested from Dhilyar curve. I know that I have no power to register the case under section 9(b) of C.N.S. Act."
5. After recording the above statements, learned Trial Court heard arguments on bail application and vide judgment dated 1-6-2005 acquitted the accused Anwarzada. The operative part of the above judgment is reproduced as follows: "In view of above reasons, the prosecution case is in violation of mandatory provisions of sections 21 and 22 of C.N.S. Act. Besides the fact of false implications of the accused and as such, the accused Anwarzada Pathan is acquitted under section 265-K Cr.P.C. Accused Anwarzada is produced in custody, he should be set at liberty if he is not required in any other case.
' Issue letter to S.H.O. Police Station Khipro with directions to produce the case property in Court within three days:-- ' The copy of judgment is forwarded to S.H.O. Police Station Sanghar with directions to register the F.I.R. Against A.S.-I. Allandino Rajar, posted at Police Station Khipro, for falsely implication accused Anwarzada in Crime No.34 of 2005, under Police Rules, 2002, within three days of receiving the copy of judgment, under intimation to this Court."
6. In pursuance of above directions Crime No.65 of 2005 was registered against the applicant with Sanghar Police Station under Article 156-B and C of Police Order, 2002. Applicant filed the instant bail before arrest application in the above crime and was admitted to interim pre-arrest bail by my respectable brother Anwar Zaheer Jamali, J. In the above crime. Now the same has come up before me for confirmation or otherwise.
7. On facts. Syed Madad Ali Shah learned counsel for applicant argued that learned Sessions Judge while, acquitting accused made a baseless observation that accused Anwarzada was falsely implicated in the said case.
8. Mr. Shah further argued that however, the admitted Position was that as per provision of sections 21 and 22 of the Control of Narcotic Substances Act 1997 a police officer below the rank of Sub- Inspector, such as the present applicant, was not authorized to arrest the accused and recover the narcotic and seize the vehicle; yet,-in view of the case of Muhammad Hanif v. The State (2003 SCM R 1237). The trial of accused in an offence in Control of Narcotic Substances Act, 1997 would not vitiate for the simple reason that the arrest, seizer and investigation was made by an incompetent police officer as, at the best, such an irregularity could be cured under section 537, Cr.P.C. Mr. Shah referred to relevant observation in the cited case, which is reproduced as follows:-- ' We are not persuaded to agree with learned. Advocate Supreme Court on behalf of petitioner, that since the raid was conducted and investigation made by an unauthorized police officer in violation of the mandatory provisions as contained in sections 21 and 22 of the Control of Narcotic Substances Act, 1997 the whole trial has vitiated for the simple reasons that arrest, seizer and investigation by an incompetent police officer would not vitiate the trial and at the best such an irregularity can be cured under section 537, Cr.P.C. As it has caused no prejudice to the petitioner...."
5. Mr. Shah also referred to the case of Nagar Khan v. The State (2003 PCr.LJ 789 (Karachi) and argued that similar view was taken by a Division Bench of this Court comprising Shabbir Ahmed and Muhammad Sadiq Leghari, JJ., therefore, neither the accused involved in the above- mentioned narcotic case could have been acquitted by learned Sessions Judge as Special Judge for Control of Narcotic cases. Sanghar nor he could have issued directions for registration of F.I.R.
Against the present applicant.
10. Mr. Shah also contended that the offence as alleged against the applicant was not covered by prohibitory clause of section 497 Cr.P.C. As the punishment provided for offence falling under section 156 of the Police Order, 2002 was not more than five years. Relying on the case of Tariq Bashir and 5 others v. The State reported in PLD 1995 SC 34, Mr. Shah prayed that the interim pre- arrest bail already granted to the applicant be confirmed.
11. On the other hand, Mr. Anwar Ali H. Ansari, learned State Counsel did not dispute the factual as well as legal position of the case as referred to in submissions of Syed Madad Ali Shah. He stated his no objection to the confirmation of interim pre-arrest bail already granted to the applicant. He further expressed that the question of filing of the appeal against the judgment dated 1-6-2005 of Sessions Judge/Special Judge for Control of Narcotic Substances, containing the directions which led to the registration of the Crime No.65 of 2005 against the applicant was under consideration.
12. Since the question of filing of appeal against the judgment which gave rise to the registration of the crime is under consideration. I restrain to make any observation as regards the merits or demerits thereof. The offence is not punishable for more than five years hence, the prohibition under section 497 Cr.P.C. Is not attracted in the case of applicant. Nothing has been stated if there is apprehension of repetition of the crime on the part of applicant so also it has not been urged that applicant is likely to tamper with the evidence or is likely to jump the bail after being released.
Also, there is nothing that after the grant of interim pre-arrest bail applicant has misused the concession, learned State Counsel has already stated his no objection to the confirmation of interim pre-arrest bail. Accordingly, considering all the facts, circumstances and case-law, as above, the interim pre-arrest bail granted to applicant vide order dated 16-6-2005 is confirmed. -