1. ' Applicants seek bail in Crime No,5 of 1997 registered at Sub-Circle Criminal Circle H, F.I.A. At Police Station F.I.A./Crime Circle II, Karachi under section 5(2) of Prevention of Corruption Act, 1947 read with section 109/275/274/468/471, P.P.C. And section 27(2) of Drugs Act, 1976.
2. ' The facts in brief of the prosecution case are that this case was lodged on 13-12-1997 by Altaf Hussain, Assistant Director, F.I.A. On the complaint of Ali Akbar Sial, Federal Inspector Drugs.
3. Consequent upon the complaint a raid was conducted on 11-12-1997 by the complainant with the assistance of F.I.A. Team headed by Altaf Hussain of M/s. United Agencies owned by applicant Abdul Razzak Billoo and found expired, outdated medicines/drugs along with the stickers showing names of medicines and their expiry date. The medicines and stocks were seized under seizure memo. In presence of the applicants and other witnesses. It is further mentioned that the raiding party searched another store of M/s. R.K. Chemicals Company owned by the applicant Abdul Ghaffar Billoo and recovered huge quantity of expired outdated medicines which were also seized in his presence as well as that of witnesses, under seizure memo. The prosecution case further is that on further enquiry it was found that expired medicines specially injunctions Sodium Bicorbonate 7.5% were sold to different Federal and Provincial Government Hospitals either by changing their outer labels or by putting rubber stamps showing valid dates of expiry. It is further alleged that on the day of lodging of case, the applicants were called in the office and were interrogated who could not give satisfactory explanation with regards to the above stocks and rubber stamps and printed out labels. It is also said that applicant Billoo confirmed that he had sold the said expired medicines to various Government Hospitals. The applicants were arrested and interim challan has been produced. Bail application was filed in the lower Court in which interim bail was granted on 16-12-1997 which was later on not confirmed and was rejected. Hence this bail application.
4. ' It is contended by Mr. M. Ilyas Khan for the applicants that it is only applicants who have been shown in custody in the interim challan whereas none from staff of any of the hospital have been shown either accused or arrested in the case though sufficient time has lapsed after registration of the case and the same has been thoroughly investigated by the Investigating Officer Ch. Sardar Khan of F.I.A. Branch Crime Circle II. In view of this learned counsel states that applicants cannot be booked under section 5(2) of Prevention of Corruption Act, 1947. He next contended that in view of Notification issued by Ministry of Interior and Narcotics Control vide S.H.O. No,826(1)/97, dated 20th September, 1997, sections 468 and 471, P.P.C. Have been taken out from the Schedule and F.I.A. Has been excluded to investigate into the matters. So far as sections 274 and 275 are concerned these sections were never included in the schedule as such the same are also out of the purview of the F.I.A. To investigate. With regard to section 27(2) of the Drugs Act it is contended that subsection (2) of section 30 of the said Act makes this offence a non-cognizable one and also that no Court other than Drug Court shall try an offence punishable under the said offence. Here an F.I.R. Has been lodged by F.I.A. Showing Akbar Sial, Inspector Drugs as complainant which according to the learned counsel is not the requirement of law and complaint in view of section 4(h), Cr.P.C. Is to be lodged before the Court having jurisdiction. This violation vitiate the entire proceedings. He lastly contended that very F.I.R. On the basis of which the proceedings have been initiated is not in accordance with law and is without lawful authority as the same has not been signed by the complainant. In support he placed reliance on the cases reported as 1994 PCr.LJ 1065 and PLD 1995 SC 34.
5. ' Mr. Musheer Alam, learned Standing Counsel frankly concedes that in the present case the allegations against the applicants require further probe and he has no objection to the grant of bail.
6. ' Learned counsel for the applicant frankly accepted that the applicants being wholesale dealers used to keep the expired medicines and file such claims with the original Companies. Copy of such claim has been placed on record.
7. From the F.I.R. It transpires that the same, is not signed by complainant Ali Akbar Sial as such it cannot takes place of that of F.I.R. The provisions laid down in section 154, Cr.P.C. Stipulates the provisions with regard to lodging of an F.I.R. It shows as to how an information about the cognizable offence is to be recorded at Police Station for proper appraisal section 154, Cr.P.C. Is reproduced, which reads as under: "154. Information in cognizable cases.--Every information relating to the commission of a cognizable offence if given orally to an officer in chief of a police station, shall be reduced to writing by him or under his direction be read over to the information; and every such information whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the Provincial Government may prescribe in this behalf."
8. From the above provision of law it is mandatory that the information with regard to Commission of cognizable offence given orally or in writing shall be reduced to writing by police officer in charge of police station and shall be read over to the informant and be got signed by him and shall be entered in a book to be kept by such police officer of such police station. The amendment made by the concerned Ministry in section 6 of F.I.A. The authority has been excluded from enquiring into the offence under sections 468 and 471, P.P.C. With regard to sections 274 and 275, P.P.C. These even otherwise are not included in the Schedule, as such they are also excluded from the purview of investigation by the F.I.A. Authorities. So far as Drugs Act is concerned subsection (2) of section 30 of the Act seemingly stipulates that an offence punishable under subsection (2) of section 27 shall be non-cognizable and it further says that no Court other than Drug Court shall try with offence.
9. According to this provision of law, a complaint as defines under section 4(h), Cr.P.C. Is to be filed before the Court having jurisdiction and F.I.R. Is not its substitute. In such situation, a procedure laid down in section 155, Cr.P.C. Is to be followed which admittedly has not been followed in this case.
10. The case of Shujauddin v. The State reported in 1994 PCr.LJ 1065 referred by applicants' counsel is fully applicable to the facts of the present case and in the referred case F.I.R. Has been quashed being without lawful authority. The alleged offence being at the most punishable with 7 years would fall out of prohibitory clause of section 497, Cr.P.C. Hence, grant of bail is rule whereas refusal is an exception. This principle has been laid down by Hon'ble Supreme Court in the case of Tariq Bashir and 5 others v. The State PLD 1995 SC 34. Looking to the above discussion on factual as well as legal aspect of the case and no objection raised by learned Standing Counsel, I am of the considered opinion that the allegations against the applicants require further enquiry and there are no reasonable grounds to believe that they are guilty of the alleged offence. Accordingly, they are granted bail and shall be released on their furnishing surety in the sum of Rs,1,00.000 (Rupees one lakh) each with P.R. Bond each in the like amount to the satisfaction of the Trial Court.