SARMAD JALAL OSMANY, J.--- The brief facts of the matter per F.I.R. No.1022 of 2004, registered by the Pakistan Coastgaurds at Korangi, Karachi on 6-4-2004 at 14-00 hours, are, that on the same date at about 11-15 hours the applicant/accused was arrested at Cantonment Railway Station Karachi on suspicion of smuggling upon prior spy information. Two suit-cases and a handbag with which the accused was standing were taken into custody and upon search of the suit-cases, 78 Kgs. of Hashish was recovered contained in 74 packets having different kinds of wrappers. As no private witnesses were available to act as such, two Sepoys of the Coastguards witnessed the arrest and recovery.
2. Learned counsel for the applicant has firstly submitted that the Coastguard Authority did not have any jurisdiction to arrest the accused and seize the alleged narcotics substance at Cantonment Railway Station Karachi. In this connection, he has referred to section 14(1) of the Coastguard Act which provides that the officers and members of the Pakistan Coastguards shall perform such functions of Customs Officers as may be entrusted to them and exercise such powers under the Customs Act as may be delegated under section 6 of the Customs Act for the purpose of prevention of smuggling along the coastal areas of the Provinces of Sindh and Balochistan except the limits of the various ports in those areas. Per learned counsel S.R.O.30(I)/73, dated 3-1-1973 issued by the Central Board of Revenue confers the functions of Customs Officers under various provisions of the Customs Act to all officers of the Coastguards not below the rank of Junior Commissioned Officers within their respective jurisdiction. Hence, per learned counsel as the entire city of Karachi can be called a port area, therefore, the Coastguards exceeded their jurisdiction insofar as the arrest/seizure in the present matter is concerned. In support of this submission, learned counsel has relied upon Shujauddin v. Pakistan Coastguards PLD 1978 Kar. 1110; Muhammad Mehfooz v. Collector of Customs PLD 1986 Kar. 28 and Collector of Customs v.
Muhammad Mehfooz PLD 1991 SC 630.
3. On merits, learned counsel has firstly submitted that no private witnesses were associated with the recovery although admittedly the place of arrest was the Cantonment Railway Station, Karachi at 11-15 hours in the morning. Secondly, nothing is mentioned in the F.I.R. as to how the packets of narcotics were weighed. Thirdly, per learned counsel, per the Chemical report two samples of the recovered narcotics were sent for examination each weighing 58 grams. Consequently, as samples from all the 78 seized packets were not sent, it cannot be said that all of them contained the narcotic substance. In this connection, learned counsel has also submitted that there has been a delay of 8 days in sending the samples. In support of these submissions learned counsel relied upon Farid Gul v. The State 2002 PCr.LJ 1810; Hadi Bux v. The State 2000 PCr.LJ 714, Nasir Khan v. The State 1997 M LD 1473; Muhammad Chattal v. The State 2001 YLR 654; Mst. Hajira v. The State 2000 YLR 53.
4. On the other Mr. S. Mehmood Alam Rizvi, learned Special Prosecutor has submitted that per the record two samples weighing 58 grams each were drawn from the seized narcotics substance and sent to the laboratory for testing purposes which was positive. The weight of the samples has also been corroborated by the Laboratory report. Insofar as drawing samples from each packet is concerned, per State Counsel, this is not necessary in view of the observations of the Honourable Supreme Court in Ali Muhammad v. The State 2003 SCM R 54. Regarding the jurisdiction of the Coastguards in the matter, Mr. Rizvi has submitted that per section 14(1) of the Coastguards Act, the Coastguards have been given powers of Custom Officers for the purpose of prevention of smuggling along the coastal areas of Sindh and Balochistan which have been described in the Schedule to extend from the southern, strip of Balochistan to the Town of Jati in District Thatta excluding the ports within this area. Per leained counsel, the ordinary dictionary meaning of the word "Port" is a place for the lading and unlading of ships or other vessels and hence would be confined to the docks alone viz. Keamari area in Karachi. Consequently, other areas outside the port area would come within the jurisdiction of the Coastguards. In this connection he has relied upon Shujauddin v. Pakistan Coastguards (supra). He has, therefore, prayed that the bail application be dismissed.
5. We have heard both the learned counsel as well as the learned Special Prosecutor. Our conclusions are as follows:-
6. As regards the jurisdiction of the Pakistan Coastguards in the matter, it would be seen that per section 14(1) they have been authorized to perform such functions of Custom Officers as may be entrusted to them under section 6 of the Customs Act within the coastal areas of Sindh and Balochistan excluding the limits of the various ports in those areas. Coastal areas have been described in the Schedule to the Act as extending from the southern strip of Balochistan along the Town of Mund, Turbat, Khuzdar, Bela, Uthal Bela, Uthal to Hub River and also the southern area of the Province of Sindh from Hub River (Bund Murad), Gadaap, Sari Singh, Thana Bulla Khan, Mirpur Batero and Jati to the Arabian Sea but excluding the limits of any ports in these areas. Admittedly, therefore, the City of Karachi falls within the jurisdiction of the Coastguards, however, it is to be seen whether the entire city can be described as a port or any particular portion of it. In this regard reference can be made to the ordinary meaning of the word "Port" which is a place intended for landing and shipment of goods and passengers. In the case of Shujauddin v. Pakistan Coastguards (supra) it was held as much and further that had the Legislature intended to give different meaning to the word "Port" in the Coastguards Act nothing could have been easier than to define the port to mean a customs house as defined in the Customs Act, 1969 or even a port as defined in the Ports Act, 1908. Consequently, it was held that other areas in City of Karachi viz. Garden East, P.E.C.H.S., Jamia Cloth Market, Noor Market and Super Highway, which have no connection with ships and the shipment of goods or passengers are not within the port area. It was also observed in the said judgment that the reason why port areas were expressly excluded from the coastal areas and from the territorial jurisdiction of the Coastguards is because in port areas the officers of customs as well as the Port Authority have adequate power to detect cases of smuggling etc. For all the foregoing reasons, we are of the opinion that the Cantonment Railway Station in the City of Karachi is not within the port area and B hence falls under the jurisdiction of the Pakistan Coastguards with the result that the arrest and seizure in question cannot be challenged on the ground of jurisdiction. With regard to the case of Muhammad Mehfooz v. Collector of Customs (supra) relied upon by the learned counsel, in our opinion the same is distinguishable as it relates to the jurisdiction of the Customs Authorities. In this case it was held by a Division Bench of this Court that as the goods in-question were seized outside the port area the Customs Authorities had no jurisdiction as they only empowered to do so within such area. The aforementioned decision was upheld by the Honourable Supreme Court in the case of Collector of Customs v. Muhammad Mehfooz (supra).
7. As regards the sending of the samples from each slab in-question is concerned, it would be seen that per the evidence on the record, prima facie it has been established that a huge quantity of narcotics viz. Hashish was recovered contained in 74 packets and having a total weight of 78 Kgs.
Hence even if samples from two packets were sent for chemical examination, the accused could ultimately be convicted for the quantity contained in these two packets and as much has been held in the case of Farid Gul v. The State (supra). It is fair to assume at this stage that each packet contained at least 1 Kg. of Hashish. As regards the other cases cited by learned counsel, it would be seen that in Hadi Bux v. The State (supra) a learned Division Bench of this Court came to the conclusion that where the sample was sent for analysis after a gross delay of four months and no Mashirnama was prepared etc. at the time of recovery of the case was one of further enquiry. As observed above, such are not the facts of the present case. With reference to Nasir Khan v. The State (supra) relied upon by learned counsel where it was held that at least two thirds of the seized narcotics should be sent as a sample, respectfully, we are not in agreement with the same since it is not stated anywhere either in the Control of Narcotic Substances Act or the Rules made thereunder as to how much quantity from the seized narcotics should be sent for the purpose of Chemical Analysis. Consequently, we are of the opinion that a reasonable quantity should be sent.
In the D present case, when 58 grams were sent as a sample from each packet weighing approximately one kilogram each, this would be sufficient in the circumstances of the case.
8. For all the foregoing reasons, in our opinion, prima facie the accused/applicant can be connected to the crime in-question. Hence this bail application is dismissed. However, at the same time, we would direct the learned trial Court to dispose of his case expeditiously.