' IFTIKHAR MUHAMMAD CHAUDHRY, C.J.--- Petitioner has challenged the order, dated 31st October, 2005, passed by Lahore High Court, Rawalpindi Bench, Rawalpindi whereby respondent, being an accused under sections 9(c), 14 and 15 of the Control of Narcotic Substances Act, 1997 (hereinafter referred to as "the Act, 1997") has been granted bail, therefore, instant petition for cancellation of bail has been filed.
2. Facts, giving rise to instant proceedings, are that respondent is the owner of Muslim Hotel, I&T Centre, G-10, Islamabad (hereinafter referred to as "the Hotel"). On 20th July, 2005 at 10-00 p.m.
Shehzad Ali Kavish, Inspector, A.N.F. Rawalpindi, in pursuance of spy information about concealment of narcotics in different rooms of the Hotel, statedly meant for sale to foreigners, conducted raid in Hotel's rooms including the Room No,102. Its lock was opened and 1 Kg. Of heroin and 2 Kgs. Charas, concealed in special designed cavities were recovered therefrom. Similarly, from Rooms Nos.103, 104, 105 and 115, narcotics of different quantity, were recovered. The rooms were occupied by foreign nationals as such they were also arrested. According to investigation respondent had earmarked Room No,102 for his exclusive use. The samples of the recovered narcotics from Room No,102 were prepared for the report. Of Chemical Analyzer. Later on, respondent was arrested. During investigation, statements of co-accused Raja Muhammad Nawaz and one Malik Najeebullah, being responsible to look after the accounts of the Hotel were recorded.
It is stated that Malik Najeebullah is related to respondent being 'his maternal-uncle. P.Ws. Zaheer Ahmed and Ijaz Muhammad, waiters of the Hotel, were also examined. They supported the prosecution case and charged the respondent for the commission of the offence. The trial Court declined to release respondent on bail. However, concession of bail was extended to him by the learned High Court vide impugned judgment. As such present petition has been filed for cancellation of the bail.
3. Learned counsel for the State contended that:-
(i) Admittedly business of Hotel was being run by respondent through employees, as he himself is in the Government Service, therefore, he had obtained licence in the name of Malik Najeebullah.
(ii) P.Ws. Zaheer Ahmed and Ijaz Muhammad, in their statements, before the police, recorded on 22nd July, 2005 furnished strong incriminating evidence to substantiate that narcotics were kept in Room No,102 by the respondent.
(iii) Sentence under section 9(c) of the Act, 1997, is death or imprisonment for life, therefore, he was not entitled for grant of bail.
4. On the other hand learned counsel appearing for respondent stated that:--
(a) Though the respondent is the owner of the Hotel but he has no physical control over it as Malik Najeebullah, his maternal-uncle, on whose name professional licence was issued by the Excise Department, used to run it.
(b) P.Ws. Zaheer Ahmed and Ijaz Muhammad has resiled from their statements, given to Investigating Officer, as they furnished affidavit dated 31st October, 2005, filed during pendency of the application of respondent for grant of bail in the High Court, which was instituted on 17th September, 2005.
(c) Raja Muhammad Nawaz being co-accused legally is not capable to furnish incriminating evidence against the respondent.
(d) Malik Najeebullah was running the Hotel, therefore, respondent cannot be held responsible for the commission of offence, if any committed.
(e) The prosecution version that Room No,102 was in the exclusive use of respondent is incorrect because according to the register of booking of rooms, this room had been let out from time to time.
(t) The trial of the case is about to commence, therefore, cancellation of bail of respondent will not advance the cause of justice.
(g) The superior Courts, ordinarily, had declined to cancel the bail of an accused, unless the order of the High Court is not found perverse or otherwise in the eye of law.
5. We have heard parties counsel at length and have also gone through the relevant record so made available before us. It is an admitted fact that respondent is the owner of the Hotel. He is in the employment of the Government and business of hotel was being run by him through one Malik Najeebullah as the licence was obtained by him on his name from the Excise Department, but said person had left the job as it is pointed out by the learned counsel appearing for him who had read the affidavit filed by him, which was in possession of learned counsel. According to him he was arrested by the police, initially in the case but to prove his innocence, he prepared this affidavit.
6. It is noteworthy that in the affidavit in unambiguous terms, Malik Najeebullah maintained that he left the job eight months back. Thus, no evidence is available on record to infer that the Hotel was not being run by the respondent himself. Record further reveals that keys of Room No,102 of the Hotel were obtained by Investigating Agency from the counter and opened in presence of witnesses as per recovery memos. It is important to note that on search of Room No,102, narcotics were found lying in special designed cavities. As far as the guests or employees of the Hotel are concerned, they are not supposed to make such cavities as built-in cavities could be made at the time of construction of the Hotel or later on, by no one else, except the owner of the Hotel, or with his permission.
7. So far as the statements of two witnesses i,e, Zaheer Ahmed and Ijaz Ahmad are concerned, they are very important. Both the witnesses got recorded their statements on 22nd July, 2005 i,e, two days from the date of registration of the case. A careful perusal of these statements reveals that they had fully substantiated the prosecution case. It is important to note that they remained strict to their stand till the disposal of the request of the petitioner for grant of bail, but after his submission of bail application before the High Court on 17th September, 2005, affidavits, denying earlier stand, were managed by the defence and were filed on 31st October, 2005. In affidavits, they have resiled from their stand earlier taken by them before the Investigating Agency. The learned High Court had believed their changed stance as it is evident from the following para. Of the judgment:- "(7) Khalid Aziz, Manager of the Hotel, Najeeb Awan, Accountant, Zubair Ahmad and Muhammad Ejaz both waiters recorded their statements under section 161, Cr.P.C. With an inordinate delay.
However, all the witnesses executed an affidavit exonerating the petitioner from the commission of the crime. In this view, the prosecution is in possession of a solitary statement of Muhammad Nawaz, a co-accused of the petitioner. The case of the petitioner, thus, is open to further inquiry into his guilt."
8. Learned counsel for respondent stated that affidavit of a witness can be considered at the bail stage to ascertain as to whether the accused has made out a case or not. In this behalf he has relied upon the case of Muhammad Hayat v. The State 1988 SCM R 474. In this case affidavits of two witnesses were accepted for granting bail, in view of the peculiar facts and circumstances of the case noted therein. Similarly, he relied upon Muhammad Nawaz v. The State 1991 SCM R 111, wherein a person who has furnished the affidavit appeared before the Court and affirmed to the contents of the affidavit. Later on this Court examined this aspect in the case of Naseer Ahmed v. The State PLD 1997 SC 347, wherein following observations were made about affidavit of a witness, to create a doubt in prosecution case:-- "Be that as it may, we do not propose to make any comments with regard to the statements of these two witnesses mentioned above for the reason that they would still be examined in the trial Court as witnesses where they would be subjected to cross-examination but this fact alone is not enough to falsify other material on the record, i,e, statements of four injured eyewitnesses implicating the petitioner, the motive alleged against him, absconsion, recovery of five empties of pistol of .30 bore from the spot before the recovery of pistol from the petitioner and the positive report of the Ballistic Expert. At the time of hearing of bail application Court is supposed to do tentative assessm ent of the material available on the record, which is different from final appraisement and evaluation of evidence which is to be done by the trial Court which was to record evidence of witnesses. A trend has developed now-a-days that eye-witnesses sometimes take a somersault and give statements which are different from prosecution case and sometimes file affidavits also at the stage of hearing of bail application of accused persons with intention of creating doubt in the case of prosecution to enable the accused to get bail. The Courts have to be very careful in such cases and see that bail applications are disposed of strictly according to law on merits keeping in view the distinction between tentative assessment and actual evaluation of evidence by the trial Court. It is the mind of the Court which is to be satisfied where about-turn of some of eyewitnesses in the manner stated above shakes up the whole prosecution case from the point of view of credibility of the remaining material. In that respect each is to be decided on its own merits. In the instant case we are of the view that there is sufficient material on the record which satisfies the mind of the Court to the effect that it is case of not only Lalkara but the petitioner had come armed with a pistol and had fired and the motive is mentioned in the F.I.R.
Against him and there is positive report of the Ballistic Expert that the five crimes/ empties were fired from the pistol which was recovered from the petitioner and the fact that he was arrested after a delay of twenty-three days."
9. It is important to note that in this case earlier two judgments referred to hereinabove were not discussed but with due deference to the view taken therein, we may point out that this Court had time and again stated that the bail applications are to be disposed of on the basis of material available on record as the Court is required to form a tentative assessment of the evidence available on record, as it has been held in Behram Khan v. Nasir Ahmad Bacha PLD 1986 SC 118.
10. It may be noted that the cases of accused persons, who are involved in the commission of drug trafficking, etc. Are to be considered carefully, in view of the fact that the menace of the drugs is creating havoc for the society and the Courts in such-like cases may have not granted relief for technical reasons. If the Court is satisfied that the sufficient material is available on record, then no hesitation should be felt in declining relief to them. Reference in this behalf can be made to Munawar Hussain v. The State 1993 SCM R 785. It may also be noted that accused persons, particularly involved in narcotics cases, faced no difficulty in obtaining affidavit from the witnesses, resiling from their previous statements, therefore, while considering the same the Court is required to see facts of each case in its peculiar perspective to ascertain as to whether the accused is involved in the commission of offence or not? Both the witnesses Zaheer Ahmed and Ijaz Muhammad at the time of investigation of the case furnished incriminating evidence to, prima facie, conclude that respondent is involved in the commission of offence, falling within the mischief of section 9(c) of the Act, 1997.
11. .Learned counsel for respondent contended that once the bail is granted, it is not to be cancelled unless the prosecution alleges that the concession of bail has been abused by the accused.
' In this behalf he relied upon Ajmal Khan v. Liaqat Hayat PLD 1998 SC 97, wherein it has been held that Supreme Court, normally does not interfere with the order of the Court regarding bail in cases in which either the challan has been put in the Court and the trial is likely to commence shortly or the trial has begun. He also relied upon Muhammad Jahangir Badar v. State PLD 2003 SC 525. In this judgment it has been held that if the trial of the case had commenced, then, instead of releasing the accused on bail, direction be made for expeditious disposal of the case by adopting certain modalities to ensure that the accused was not detained further for indefinite period.
12. We have examined both the principles discussed in these cases. In our considered opinion, the principles enunciated therein are not applicable on the facts of the case in hand for the reason that the Court is empowered to cancel the bail if the order on the face of it is perverse and has been passed in violation of the principles laid down for grant or cancellation of bail. Essentially in instant case, learned High Court, despite evidence, available on record, had conducted further inquiry in a vague manner, to make out a case for grant of bail. This practice has been prohibited by this Court. Reference in this behalf can be made to Gulzar Hassan v. Ghulam Murtaza PLD 1970 SC 335, wherein, on the basis of the judgment in the case of Farid v. Ghulam Hussain and others 1969 SCMR 924, held that "the Court is not called upon at the stage of bail to conduct anything in the nature of preliminary trial to consider the probability of an accused to guilt or innocence, though it is necessary to ascertain as to whether there exists any reasonable ground upon which its belief can be founded that he had been guilty of such an offence". As it has been pointed out hereinabove that the affidavits were obtained from both the witnesses on 31st October, 2005, after filing of application by the respondent for grant of bail before the High Court on 17th September, 2005 and learned High Court on having believed the same, granted bail to the respondent. As far as the judgment in the case of Muhammad Jahangir Badar (ibid), relied upon by the learned counsel is concerned, it is not helpful to him because in that case bail was not granted to the accused but the time was fixed for conclusion of the trial. In instant case as well, the charge has been framed and in such-like situation, learned High Court may have directed for completion of trial by adopting certain modalities.
13. Learned counsel also relied upon Tariq Bashir v. State PLD 1995 SC 34, to canvass that when once bail has been granted then strong and exceptional grounds would be required for the cancellation thereof. He also relied upon Razi Khan v. Muhammad Mushtaq 1996 SCM R 984. In this case leave to appeal was refused while holding that the Court of competent jurisdiction in its discretion had allowed bail to respondent No,1; the reasons given by the learned. High Court that the discretion exercised by Sessions Court in allowing bail to accused were supported by the evidence and circumstances appearing in the case; accused was not named in the F.I.R.; consideration for the grant of bail and cancellation thereof being altogether different. Apparently the facts of the case in hand are altogether different from the facts of the case relied upon by the learned counsel.
14. Learned counsel also relied upon Muzaffar Iqbal v. Muhammad Imran Aziz 2004 SCM R 231. In this case a very important principle has been highlighted namely "the discretion is left to the Court under section 497(5), Cr.P.C. Which is 'pari materia' with the principles which apply to the setting aside of the order of acquittal". There is no cavil with the proposition discussed therein. Applying this principle on the case in hand, it can safely be held that as the evidence of both the P. Ws.
Zaheer Ahmed and Ijaz Muhammad, recorded by the police, cannot be kept out of consideration, on the basis of affidavits filed by them, subsequently, when the matter was pending before the High Court, therefore, their evidence could have been kept out of consideration, as in acquittal cases, if some important evidence is not discussed or kept out of consideration, interference is called for by the Appellate Court. Reference in this behalf may be made to Ghulam Sikandar v.
Mamaraz Khan PLD 1985 SC 11.
15. Learned counsel also relied upon Suba Khan v. Muhammad Ajmal 2006 SCM R 66. In this case as well the same principle, which has been highlighted hereinbefore has been reiterated, therefore, judgment needs not to be discussed.
16. On the basis of material, whatsoever, has been brought on record, prima facie, we are of the opinion that it was a case in which learned High Court may have not exercised discretion in favor of respondent for the purpose of granting bail to him under section 497(2), Cr.P.C. As such the order, being contrary to recognized principles of law for the grant of bail, deserved to be set aside.
' Thus, for the foregoing reasons, petition is converted into appeal and allowed, impugned order, dated 31st October, 2005 passed by Lahore High Court, Rawalpindi Bench, Rawalpindi in Criminal Miscellaneous No,1031/B of 2005 is set aside, as a result whereof bail granted to respondent Khalid Sharif is cancelled. He is directed through surety to surrender immediately, failing which surety bond shall be forfeited by the trial Court in accordance with law.