' The petitioner seeks cancellation of bail after arrest of the respondent granted by the learned Judge Special Court (CNS) on 14-1-2005, in case vide F.I.R. No,36 dated 11-10-2004 under section 9- C read with section 14/15, CNSA, 1997, registered with Police Station, ANF, Attock.
2. Gravamen of the charge, as it appears from the F.I.R., is that a raiding party headed by Syed Nafeer Haider Zaidi, Sub-Inspector, on receipt of spy information was formed who at about 9-45 a.m. On 11-10-2004, apprehended Shaukat Ali and Mushtaq Hussain and recovered from them 200 packets of heroin weighing 100 grams with two packets of Charas weighing 2 kilograms. On disclosure of the apprehended accused, 2 kilograms of Charas and 800 grams of heroin was further recovered from the "Haveli" of the petitioner which was under guard of one Muhammad Khan. In this manner total recovery of Charas became to 6 kilograms and that of heroin became to one kilogram. Since recovered contraband was stated to be owned by the petitioner and one Dost Muhammad, Special Prosecutor requested the trial Court for issuance of their warrants of arrest which were issued on 22-12-2004, only to the extent of Dost Muhammad, and the same was refused regarding the petitioner. Subsequently, police on the basis of fresh collected material arrested the petitioner and got his physical remand whereafter he was remitted to judicial lock up.
An application for post-arrest bail of the petitioner was moved before the trial Court which was accepted and the petitioner was granted bail vide order-dated 14-1-2005. Thereafter, the instant petition for cancellation of bail of the respondent was filed by the Force Commander ANF, Regional Directorate, Rawalpindi. Respondent in response to notice by this Court, has appeared and is represented through his counsel who raised a preliminary objection regarding competence of the petitioner to maintain instant petition and that too, through special prosecutor.
3. The learned counsel for the petitioner replying the objections of the respondent regarding his authority to file the instant cancellation petition, referred to Notification No,15 (1178) ANF/LAW/2004 dated 3-8-2004 and to section 50 of the Control of Narcotic Substances Act, 1997, to contend that a Special Prosecutor is competent to move for cancellation of bail granted by the trial Court. He also referred to SRO.594(I)/97 dated 7-7-1997 whereby Federal Government delegated its power under the Control of Narcotic Substances Act, 1997 to the Director General, ANF, with all its powers/functions, while exercising power under section 71(C) of the Act. Reliance was also placed on section 14 of the Anti-Narcotics Force Act, 1997 to urge that the Directorate of A.N.F. Was duly authorized and was competent to follow the proceedings under the Act and cancellation of bail being in the continuation of the proceedings under the Act, the same were competently initiated by the Regional Director ANF. While addressing the argument on merits of the case, it was submitted that the order of the learned Special Judge (CNS) granting the bail to the respondent was capricious, arbitrary and fanciful, hence, the concession of bail granted to the respondent deserved to be cancelled/rescinded. It was further argued that the respondent was connected with the offence charged and the prosecution is equipped with sufficient evidence in this behalf, including the documentary evidence showing that the respondent is not only owner of the "Haveli" wherefrom the contraband was recovered but was also involved in its business of, sale, purchase and trafficking. According to him, prosecution has collected telephonic conversations by the respondent at his both the places, one at Pindi Ghaib and the other at Khanpur in N.-W.F.P.
Province. Prosecution has also said to have collected evidence showing that the narcotics business was being done by the respondent with the help of Dost Muhammad with Muhammad Hanif P.W.
Statement of the co-accused of the respondent was also said to be admissible as according to the learned Special Prosecutor, Article 40 of the Qanun-e-Shahadat Order 1984, was an exception to the general rule recognized by its Article 38, as further recovery of contraband was made in consonance of his statement. The petitioner was said to be elite of the area, and the prosecution, apprehended tampering of its evidence, at his hand. It was further argued that the trial Court travelled beyond its sphere of jurisdiction, as it decided the main case while deciding the bail petition. According to him, provisions of sections 29 and 51 of CNSA, 1997 were over looked while passing the bail order.
4. The learned counsel for respondent No,1 refuted the arguments of the petitioner and supporting the bail granting order, urged that the respondent is absolutely innocent and has been involved in a false case. It was further argued that neither the petitioner was named in the F.I.R. Nor any recovery was effected from him and that the allegation of ownership of "Haveli" from where the contraband was recovered, is belied by the revenue officials who have issued a certificate in this behalf. The learned counsel for the respondent also submitted that on the face of the record, involvement of the petitioner is fake as the police remained present in front of the "Haveli" in- question, wherefrom the co-accused of the respondent were arrested but no body pointed his involvement in the offence. According to him, involvement of the petitioner after a period of more than 2 months from the date of occurrence is absolutely unjustified. Failure of the prosecution to collect the bank statement of the respondent's account who was said to have no criminal history to his credit, negatively reflected on the case of the prosecution version. It was emphasized on behalf of the respondent that the petitioner would approach the Court who granted the bail, if there is some serious stand regarding misuse of concession of bail by the respondent. Reference in this behalf was made to the judgment of the Honourable Supreme Court in the case of Federation of Pakistan v. Muhammad Azim Khan and others 1979 SCMR 1271. Reiterating the objection regarding maintainability of instant petition, the learned counsel for the respondent vehemently argued that all the notifications and provisions of law referred, authorized the special prosecutor to appear before the Special Court only and on the basis of this appointment he has no authority to appear in this case.
5. We have minutely considered the respective arguments of the learned counsel for the parties and have examined the record, with their assistance. Before dilating upon the request of the petitioner to cancel the bail of the respondent, it appears to be appropriate that objection of the learned counsel for the respondent regarding right of the special prosecutor to appear on behalf of the petitioner and authority of the Regional Director to move the application in hand be determined. Exclusive jurisdiction of discharging functions under the Control of Narcotic Substances Act, 1997 vests in the Federal Government who by virtue of its power conferred through section 71 can delegate all its powers to the Provincial Government, or Director General or any other Authority or Officer of the Federal Government which as a matter of fact were delegated to the Director General, Anti Narcotics Force through SRO.594(I)/97 dated 7-7-1997. The other relevant enactment is Anti Narcotics Force Act, 1997 and its section 14 reads as under:-- "Members as public prosecutors:---Notwithstanding anything contained in the Code, all Directors, Deputy Directors and Assistant Directors of the Force shall be ex-officio public prosecutors in respect of all offences relating to narcotic and specified in clause (a) of section 5 for trial before the Special Court or any other Court when so directed by the Director General and may conduct the proceedings in the said Court and deal with any matter connected therewith or ancillary thereto."
' Under this provision of law, the Force Commander Rawalpindi, who was stated to be at the "Bar" the Regional Director could lawfully prosecute the offences under the Act and all other matters connected therewith or ancillary thereto, hence he could maintain an application for cancellation of bail granted by the trial Court. Since, no specific manner/procedure for filing of petition for cancellation of bail has been prescribed either in Control of Narcotic Substances Act, 1997 or in the Criminal Procedure Code 1898 and its section 497(5) conferred unrestricted powers on this Court and on the Court of Session in case of a person released by itself or by any other Court, for his arrest for committing to custody. We are of the considered view that invocation of this jurisdiction can be made on an application of any concerned person and in absence of any such application, by the Court itself, whenever any lapse, capriciousness or arbitrariness amenable to its jurisdiction, comes to its notice. Powers of cancelling of bail under subsection (5) of section 497, Cr.P.C. Can in no manner be restricted for any specific class of persons because such intention of the legislature does not flow out of those provisions. These powers are also similar to the revisional powers for which, as well, right of invocation is also not restricted. Looking from another angle petition for cancellation of bail being the continuation of proceedings of grant of bail, can be followed by the prosecutor who appeared in the bail matters, on the basis of authority conferred on him. Section 47 of the CNSA made Code of Criminal Procedure 1898 applicable to the trials and appeals before the Special Courts constituted under the Act of 1997, thus, on the basis of this provisions of law also it cannot be held that the petitioner was denuded from praying cancellation of bail of the respondent. On the same analogy, Mirza Waqas Rauf, Advocate, who was Special Prosecutor by the Federal Government through Notification No,15 (1178) ANF/LAW/2004 dated 3-8-2004 could appear in this matter to follow the petition under section 497(5), Cr.P.C. In alike circumstances the Honourable Supreme Court graciously deciding Criminal Petition No,271 of 2003 mandated through judgment dated 17-2-2005 that Federal Government having accorded permission to the special prosecutor for filing an appeal on behalf of Deputy Director FIA, correctly filed appeal before the High Court who rightly over looked the objection in this behalf. For convenience relevant part of the judgment of the Honourable Supreme Court is reproduced:-- "Since permission was accorded by the Federal Government to the Prosecutor for the purpose of filing appeal on behalf of Deputy Director, FIA, therefore, following the dictum laid down in the case of Muhammad Shafi (ibid) as well as taking into consideration the earlier judgment of High Court of Balochistan in the case of State v. Muhammad Asghar and others (ibid). We are of the opinion that appeal has rightly been filed by the Standing Counsel in terms of section 417 (2-A), Cr.P.C. And the learned High Court was quite justified in overruling the objection raised in this behalf."
' Consequently, following the view of the Honourable Supreme Court, we hold that the objection of the respondent is without any substance and over rule it, accordingly.
6. Shaukat Ali and Mushtaq Hussain co-accused of the petitioner after their arrest and making inculpatory statements regarding the petitioner, led to further recovery of contraband material from the "Haveli" of the petitioner and besides them Muhammad Khan Guard of the petitioner implicated him in the offence charged. Statements of co-accused of the petitioner are admissible under Article 40 of the Qanun-e-Shahadat Order 1984 as on the basis of. Information of those statements, further recovery was effected. Admissibility of such statement of a co-accused under Article 40 is an exception to the general rule that no confession made to a police officer shall be proved against danother accused of any offence, embodied in Articles 37 and 38 of the Qanun-e- Shahadat Order 1984. Besides this inculpatory statement of co-accused of the petitioner, prosecution had collected sufficient incriminating material connecting the petitioner with the alleged offence in form of entry in the record of Excise and Taxation Department showing his possession over the "Haveli" in question in form of PT-1 where from the contraband material was recovered and the record from the Pakistan Telecommunication Corporation showing telephone calls made from the "Haveli" in question at his residence in Hurripur N.-W.F.P. Province. In presence of overwhelming incriminating material against the petitioner, a manoeuvred certificate from Tehsildar to the effect that the petitioner was not owner of the "Haveli" was of no value for multiple reasons. As this "Haveli" has attained the character of urban property being located in urban area and was not in any revenue estate under the control of Tehsildar and that, urban property assessed to property tax, seized to be reflected in the Revenue Record. Respondent failed to explain how, why and in what capacity, it was being guarded by his persons especially when the same was lying in a deserted condition. Tentatively we are of the considered view that the petitioner was connected with the offence charged along with his co-accused persons but all these matters escaped notice of the trial Court while passing the order granting bail to the respondent and lapse in not considering these material facts, turned the said order as capricious/arbitrary/fanciful.
7. One of the P.Ws. Had also moved an application before the trial Court complaining that the accused persons being highly influential are exerting pressure on him to resile from his statement made before the police under section 161, Cr.P.C. This application was taken cognizance by the learned Judge Special Court (CNS) on 8-1-2005 ordering to put up along with the main case on 7- 2-2005. It was enough proof of misuse of concession of bail granted by the trial Court as the same was an attempt to tamper with the prosecution evidence. Offence committed by the petitioner is punishable with capital sentence and fell within the prohibitory clause of section 497, Cr.P.C. But ignoring this aspect of the case, deeper appreciation of evidence was done by the trial Court at bail stage, contrary to the settled principles governing the subject. A bare perusal of the bail granting order revealed that an attempt to smash the prosecution was made, as if an appeal was being decided but this course was not permissible under law. Considerations relevant for grant or refusal of bail, in the offence of heinous nature under CNSA, 1997 were absolutely ignored and bail was granted on irrelevant and untimely considerations.
8. For the reasons noted above, we are of the considered view that the respondent was not entitled to concession of bail unless some evidence on the file had come showing his innocence. We accordingly accept this petition and cancel the bail of the respondent granted by the trial Court on 14-1-2005. The trial Court is, however, directed to expeditiously conclude. The trial, preferably within a period of 3 months under intimation to the Deputy Registrar (Judicial) of this Court and in case of failure, the 'respondent will have a right to move for his post-arrest bail to the trial Court, again.