1. ' MUHAMMAD NAWAZ ABBASI, J.---This petition for special leave to appeal has been preferred against the order dated 10-9-2001 passed by a Division Bench of Lahore High Court, under section 497(5), Cr.P.C., by virtue of which the order, dated 31-3-2001 of granting bail to the petitioner, Who was in judicial custody in a case registered against him under sections 6 and 9 of the Control of Narcotic Substances Act, 1997 read with Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979, passed by a Magistrate during his visit to District Jail, Lahore, was recalled.
2. The allegations against the petitioner as contained in the F.I.R. Are that he, alongwith his companion namely, Mahmood Akhtar Ahmed, while travelling on motorcycle was apprehended by a police party as suspect and on the personal search, he was found in possession of 250 grams of Charas. Out of the recovered Charas, a small quantity of 5 grams was taken into a separate sealed parcel and sent to the office of chemical examiner for opinion. On the complaint lodged by Ibrar Hussain, S.-I. The case was registered against the petitioner vide F.I.R. No,55 dated 21-2-2001 at Police Station, Ghalib Market, Lahore. The petitioner on dismissal of his bail application by a learned Additional Sessions Judge, Lahore, vide order, dated 3-3-2001, approached the Lahore High Court, Lahore, through a Criminal Miscellaneous beairng No,1366-B of 2001 for grant of bail in which notice was issued to the State but before the same came up for hearing, a local Magistrate during his visit to the District Jail, Lahore, released the petitioner on bail without notice to the State. The learned Division Bench of the High Court at the hearing of Criminal Miscellaneous No,1366-B of 2001, in exercise of suo motu power under subsection (5) of section 497, Cr.P.C. Issued a notice to the petitioner as to why the concession of to him by the Magistrate, be not recalled and subsequently, vide order, dated 10-9-2001 after hearing the petitioner through his counsel and the State, recalled the order of the Magistrate through which the petitioner was allowed bail mainly on the ground that the Magistrate was not supposed to pre-empt the jurisdiction of the High Court in the matter.
2. The learned Division Bench through the same order while declining the request of the petitioner for grant of bail dismissed his bail application with the observation that the same was without any merit.
3. ' Learned counsel for the petitioner has contended that learned Division Bench of the High Court without commenting upon merits of the case and taking notice for non-submission of final or interim report under section 173, Cr.P.C. By the police, dismissed the bail application on merits and that the challan was not submitted even till today. The learned counsel argued that the offence under section 9(b) of the Control of Narcotic Substances Act, 1997 with which the petitioner is being charged, is punishable with maximum sentence of 7 years and, does not fall within the prohibitory clause of section 497, Cr.P.C. Therefore, there was no justification to keep the petitioner in jail for an indefinite period without trial. The learned counsel contended that unexplained and long delay in submission of challan would reflect upon the correctness of the allegation and would make the report of chemical examiner doubtful even if it was positive and consequently, the case of the petitioner would squarely fall within the ambit of subsection (2) of section 497, Cr.P.C. For purposes of grant of bail.
4. ' Learned counsel appearing on behalf of the State, on the other hand, has argued that record of the case being not available, he was not in a position to contradict the arguments of learned counsel on merits, vis-a-vis the report of chemical examiner. Learned counsel, however, has contended that the rule regarding grant of bail in the case which do not fall within the prohibitory clause of section 497, Cr.P.C. Would not strictly be applicable in the cases under the Control of Narcotic Substances Act, 1997, and thus the petitioner on the said ground would not be entitled to the grant of bail.
5. ' We having heard the learned counsel for the parties at length find that the grounds being taken in support of this petition can be diluted upon without the examination of record and taking pain of even making tentative assessm ent of the evidence to determine the innocence or guilt of the accused. We therefore, proceed to dispose of this petition on merits.
6. There is no cavil to the proposition that an accused for an offence which does not fall within the prohibitory clause of section 497, Cr.P.C. Cannot claim concession of bail as of right but in the light of general principle, the bail in such cases is granted as of rule. The petitioner being involved in a case under the Control of Narcotic Substances Act, 1997, cannot in the light of principle that ordinarily bail should be granted in a case which does not fall within the prohibitory clause of section 497, Cr.P.C., claim grant of bail as of right but at the same time it is not proper to keep a person accused of such an offence for an indefinite period in jail without submission of challan and permit the police to frustrate the provisions of law on the subject. It is mandatory for the police under section 173, Cr.P.C. To complete the investigation within a period of 14 days and submit the final report but if the investigation in a case cannot be completed within the aforesaid period, the officer incharge of the police station should submit an interim report to enable the Court to take essential steps for commencement of the trial. The non-observance of the above direction of law is one of the major reasons of worsening the law and order situation and delay in disposal of ceses by the Courts. It is general tendency that without proper check and restraint on the powers of the police official and locating the fault in the public functionaries the burden of negligence and inefficiency of police is put either on the shoulders of innocent people at the cost of public time and exchequer or it is shifted to the Court to be held to the Court to be held responsible for the delay in disposal of cases. The delay of more than one year in submission of challan in such petty cases being without any legal justification, would amount to delay the disposal of cases by the Courts and curtailment of liberty of the persons involved in such cases through abuse of the process of law. We having attended the matter, feel that the question of complicity of the petitioner, would definitely be a matter relating to the scrutiny to be made at the trial, therefore, we would not like to comment upon the innocence or guilt of the petitioner at this stage to cause prejudice to either party at the trial. We are of the considered view that the ground of inordinate delay in submission of challan by the police taken by the learned counsel for the petitioner in support of this petition being not ignorable would alone be sufficient for the grant of bail. The concerned quarter in the Ministry of Interior in the Federal Government and Home Departments in the Provincial Governments while taking notice of the situation should take essential steps to ensure that unnecessary delay in submission of final reports under section 173, Cr.P.C. In criminal cases is avoided and the Investigating Agencies should not be allowed to sit over the investigation beyond the normal period prescribed under the law without legal excuse. In case due to the negligence or inefficiency of an official, the delay is caused in completion of investigation and submission of challan, the Competent Authority should proceed against such official for an appropriate action under the relevant Rules.
7. For the foregoing reasons, we convert this petition into appeal, allow the same, set aside the impugned order passed by the High Court and admit the petitioner to bail subject to his furnishing of bail bonds in the sum of Rs,50,000 with one surety in the like amount to the satisfaction of the trial Court. The short order of even date delivered in the Court at the conclusion of proceedings through which the petitioner has been allowed bail should be deemed to be part of this order.