' SYED MEHMOOD ALAM RIZVI, J.---The applicant has impugned the order dated 28-4-2008 passed by the learned Special Judge-II (C.N.S.), Karachi, in Special Case No,72 of 2008 whereby his bail application was dismissed.
2. Precisely, the facts of the prosecution case are that on secret information the police of PIB Colony apprehended the accused while he was standing near the bus-stop, adjacent to Shahzad Hotel, University Road, Old Sabzi Mandi and secured one bag containing 6 packets of Charas, each packet consisting of 1 kg. Charas and on interrogation the accused disclosed his name as "Shahzad Hussain". 250 grams of Charas from one packet was separately sealed for chemical examination and remaining packets were sealed at the spot and thereafter, the F.I.R. Was lodged on 30-3-2008. After investigation, challan was submitted before the Special Court-II, C.N.S., Karachi.
3. The learned counsel for the applicant contended that the case is doubtful and the accused has been implicated falsely and the investigation is defective on the following grounds:--
(a) The Memo. Of arrest/recovery was not mentioned in the F.I.R. And at the bottom of the recovery memo. Date has been tampered, earlier on the face of it is mentioned as `30th'.
(b) The A.S.-I. Arrested the accused and lodged the F.I.R. Which is violation of section 21 of the Control of Narcotic Substances Act, 1997 (herein after referred to as 'the Act') as at least Sub- Inspector had to arrest the applicant.
(c) In presence of the secret information the search and arrest should have been made by the Sub-Inspector.
(d) Only 250 grams of Charas was for chemical examination from packet, therefore, case falls section 9(b) of the Act, hence cases does not fall within the prohibitory clause of section 497, Cr.P.C.
4. He has further contended that on the above grounds there are series of judgments in which either the accused were granted bail or the proceedings were quashed and relied upon the following judgments:-
(a) Imtiaz Ali v. State 2006 M LD 1961;
(b) Nadeem v. State 2007 M LD 1092;
(c) Pervaiz Ahmed v. State PLD 2008 Kar. 14;
(d) Muhammad Chattal v. State 2001 YLR 654;
(e) Mumtaz Ali v. State 2001 YLR 1847;
(f) Imdad Ali Junejo v. State 2002 P.Cr.LJ 1086;
(g) Muhammad Hashim v. State PLD 2004 SC 856.
5. The learned State Counsel has opposed the grant of bail and contended that the huge recovery has been secured from the applicant, who was arrested at the spot, and the applicant is not entitled for bail at this stage.
6. Heard both the counsel and perused the record.
7. Apparently, in the F.I.R. Words "memo. Of recovery/arrest" have not been mentioned, but all the details have been mentioned, which shows that the accused was arrested first and thereafter, the F.I.R. Was registered. Regarding the tampering in the seizure memo. That data has been substituted, but after going through the seizure memo. It is, clearly mentioned on the top of the memo. The time and date i.e, 2315 hours dated 29-3-2008 and at the bottom of the memo. After the designation of the complainant, there is overwriting, but the same would be discussed at the trial and prima facie, there is no defect in the case.
8. That regarding the arrest of the applicant by the complainant, who is an A.S.-I., which is violation of section 21 of the Act, the learned trial Judge has rightly held that the provisions of section 21 are directory and not mandatory in nature and departure from the same in case of heinous offences can be treated as an irregularity and not an illegality or fatal to the prosecution. I am also fortified with the judgment of the Honourable Supreme Court reported in PLD 1997 SC 408 The State v. Bashir and others in which it is held in A para.18 as under:-- "18. As regards the question, as to whether the above illegality/ irregularity if already committed by the CIA personnel would vitiate the trial, it may be observed that subsection (2) of section 156, Cr.P.C. Expressly provides that. No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate. It is an admitted position that the CIA is part of the Police Force. It is in fact a special branch carved out from the police force for special purpose. The violation of section 15(1) of the Cr.P.C. May not vitiate trial if no serious prejudice has been caused to the accused person concerned resulting in miscarriage of justice in view of above subsection (2) of section 156, Cr.P.C., but it does not mean that the CIA personnel should knowingly violate the above provisions of the Cr.P.C. On the contrary, they are legally duty bound to ensure the supremacy of law."
'Hence this is not a serious defect, which vitiates the trial and on this point the learned counsel for the applicant relied on 2002 PCr.LJ 108 Imdad Ali Junejo v. State in which the proceedings were quashed as the A.S.-I. Had registered the case, but the above judgment was not placed before the learned Division Bench.
9. That regarding sending the sample of only 250 grams from one packet, the learned counsel for the applicant forcefully argued that in such circumstances case does not fall within the prohibitory clause of section 497, Cr.P.C. And relied upon the above-mentioned judgments, which were basically based on the judgment of Muhammad Hashim (supra), but that is the case of appeal and in the said case only 4 grams of Charas was taken as sample out of total of 288 rods and nothing was available on record to show whether sample for examination by the Chemical Examiner was taken out from the each rod to ascertain that 288 rods were that of Charas or some other commodity therefore, the Honourable Supreme Court held that for such reason that case of the prosecution had become doubtful, as such, sentence awarded to the accused by the Trial Court and maintained by the High Court was not sustainable, but facts of this case are entirely different as the case is still proceeding had the prosecution can sent the rest of the packets for chemical examination. Even otherwise, the sample was taken from one packet weighing one kilogram, hence the case of at least one kilogram Charas, even at this stage, is B prima facie, proof against the accused as the sample represents the entire packet and the same was not found to be illegal at this stage. Learned trial Judge also discussed this ground and relied the judgment reported in Shabbir Ahmed v. The State 2006 YLR 1042, but the said case was also of appeal, even in that case, the learned Division Bench of this Court held that earlier the case of Ali Muhammad v.
The State, reported in 2003 SCM R 54 in which this point was turned down, but later on in Muhammad Hashim's case (supra) the Honourable Supreme Court has set aside the conviction, but the later judgment was per incuriam and the learned Division Bench rightly avoided to discuss both the judgments in detail.
10. That the judgment referred by the learned counsel for the applicant on the above ground reflects that in none of the judgments the case of Ali Muhammad (supra) was referred.
11. Even otherwise, both the above judgments are regarding the cases of appeal and not the bail application. Further, in case of Ali Muhammad (supra) the Honourable Supreme Court held that "the accused had not challenged the nature of the recovered substance being not Charas or narcotic before the trial Court or the High Court and they could not now turn around and say that because only one slab of half kilogram of Charas are recovered from them which was sent to Chemical Examiner who had opined it to be Charas, therefore, they be sentenced according to the quantity of Charas sent to Chemical Examiner. The prosecution witnesses when examined at the trial were not even suggested by the accused that the remaining property C produced in Court was not the same or that the same had been tampered with. The accused also did not pray before the Courts below that entire case property be sent to Chemical Examiner for report as to challenge that it was not a narcotic substance, therefore, conviction and sentence of accused were upheld in circumstances. Hence the applicant/accused is at liberty to file application before the trial Court to send the samples from remaining property for chemical examination.
12. In such circumstances, I am not inclined to grant bail to accused/applicant at D this stage as prima facie case is made out against him and the impugned order is well-elaborated and needs no interference. However, the learned trial Court is directed to call the Investigating Officer with the case property in Court and extract the samples from remaining packets and send the same for chemical examination and the report should be placed before the Court within 30 days. The trial Court is further directed that at the time of receiving the challans, if the samples are not taken from the remaining property, the direction be issued to the Investigating Officer to collect the samples from the remaining property as well.
13. In the above circumstances, the application has no merits and dismissed accordingly.
' The above are the reasons of the short order dated 5-8-2008.