Through this petition, the State through Deputy Director (Legal), Headquarter Anti-Narcotics Force seeks cancellation of bail granted to the respondents by the learned Judge Special Court, Control of Narcotics Substances, Lahore vide order dated 14.10.2006.
2. The brief facts of the case are that Anti- Narcotics Force, Lahore received a secret information that Shahid Nadeem Noor, Chief Executive of Calmo Interiors, Maqbool Ali Chaudhry, Hafiz Kamran, Mian Mehmood Gul and the respondents had concealed a huge quantity of narcotics in their godown, situated at 411/J, Sabzazar Scheme, Lahore, whereupon a raiding party was constituted.
Adnan Babar, S.I. And Mehmoodul Hassan, A.S.I, ware sent to the house in question in civil cloths to confirm the information. On arrival of the said two persons at the main gate of the house, it was seen that respondent No. 2 Mst. Shamaila was sitting in the driving seat of the car No. LWO 1135 and another person was also sitting in the rear seat. Soon thereafter a third person quitted from the house and sat1 in the front seat of the 'car which was driven by respondent No. 2. The raiding party thereafter raided the house. Irfan Ali, accused was apprehended, who disclosed the names of other accused as Shahid Nadeem, Hafiz Kamran and Shamaila. 27 packets of heroin concealed in nine bed side, table were recovered which on weighing, found to be 27 Kgs heroin. The car parked in the garage was also searched and four plastic bags stained with heroin and 50 white envelopes were recovered from the car. Certain documents were also recovered, from the car which were taken into possession by the Investigating Officer. The aforementioned Irfan Ali made a disclosure about the availability of heroin in the house of Maqbool Ali, situated at Walton Road, and consequently, the said house was also raided. Maqbool Ali was apprehended, on whose interrogation his agent Mazhar Hussain was apprehended and from his car bearing Registration No. BLN 364,-15 packets of heroin, weighing 15 Kgs were recovered. Accordingly, the aforementioned- F.I.R, was registered against the respondents and others. The respondents Shafiq ur Rehman and Shamaila were apprehended subsequently by ANF authority.
3. The learned Special Prosecutor ANF contended that the learned Judge Special Court had wrongly exercised the discretion by allowing bail to the respondents as he did not advert to the provisions of Section.51 of Control of Narcotic Substances Act, 1997 which clearly laid down a complete bar on grant of bail under the Act where the offence was punishable with death; that Section 14 of the Act was also applicable in the case, contravention of which entailed punishment under Section 15 of the Act; that this aspect of the case was totally ignored by the leamed Court; that the learned Court erred in extending concession of bail to the respondents while holding, that the evidence of statements under Section 161, Cr.P.C, was defective; that the learned Court instead of confining itself to tentative assessment of the evidence went into, appreciation of the evidence which was uncalled for under the law and had prejudiced the case of prosecution; that there was sufficient material available on the record to connect the respondents with the commission of offence alleged against them which fact was ignored by the learned Judge; that respondent No. 2 unlawfully participated, associated, aided, facilitated and induced the principal offender and also worked as one of the members of international smugglers of narcotic and in view thereof, she had wrongly been allowed, bail by the learned Special Judge and that the learned Special Judge had failed to apply judicial mind and completely ignored the purpose and object of special enactment, thus granted bail to the respondents on flimsy grounds and, therefore, the order dated 14.10.2006 deserved to be set aside.
4. The learned counsel appearing on behalf of the respondents contended that the respondents were not arrested at the spot; that the respondents remained on physical remand from 12.09,2006 to.19.09.2006 but nothing, was recovered from them; that the statement allegedly made by respondent No. 1 before a Magistrate under Section 164 was illegal as it had been recorded on oath; that there was no direct evidence of involvement of the respondents in the crime alleged against them and that the learned Special Court Control of Narcotic Substances, Lahore was justified in holding that the case of the respondents was of further inquiry as there was no direct evidence available on the record to connect them with the commission of Offences alleged in the F.I.R.
5. We have heard the learned counsel for the parties and perused the record with their able assistance.
6. It would be. Appropriate to reproduce the operative part of the bail granting order dated .14.10.2006.
"Shamaila and Shafiq-ur-Rehman petitioners have been nominated at the statement of Irfan Ali co- accused who made alleged statement before the I.O. Shamaila petitioner allegedly fled away from, the house but no identification parade was conducted after his arrest as Adnan Babar, S.I.
And Mehmood- ul-Hassan, A.S.I, saw her going away in the car which could have' been verified through the identification parade after her arrest. There is no other evidence available collected on the record connecting Shamaila and Shafiq-ur-Rehman petitioners with the recovered narcotics.
The alleged statement of Shafiq-ur- Rehman recorded u/s. 164 Cr.P.C, is not admissible because it has been found to be recorded on oath by the Judicial Magistrate as the same is not a volunteer statement, In these circumstances, the case, of the petitioner need further inquiry regarding their guilt. Hence, both the applications are accepted and both the petitioners are allowed bail subject to their furnishing bail bonds in the sum of Rs. 2,00,000/- each with two sureties each in the like amount to the. Satisfaction of this Court."
7. From the above it is evident that the conclusions arrived at by the learned Court below are based on genuine and logical reasons, In the context of the grounds, urged by the learned Special Prosecutor and the evidence referred to in connection therewith, suffice it to say that there is no direct evidence available on the record to ' connect the respondents with the commission of crime alleged against them by the prosecution. For instance, the record of the telephone bills referred to by the learned Special Prosecutor pertaining to the telephone connections of respondent No. 1 and the co-accused Shahid Nadeem Noor does not ipso facto establish that the conversation which took place between the said two persons was in relation to or connected with the crime alleged against them. In so far as Account No. 01-200-2218-1 in the name of Said Muhammad Khan is concerned, it was urged on behalf of the State that the same was being operated by respondent No. 1, however, we have not been able to lay over hands on any document issued by the Bank to show that either the Account had been opened by respondent No. 1 himself under a fake name or that he had been operating the said account with his on signatures. Further, the prosecution has not been able to establish a connection between the respondents and the house' from where drugs were recovered by the raiding party. Moreover, the statement made by respondent No. 1 before the learned Magistrate under. Section 164, Cr.P.C, was recorded on oath which is inadmissible under the law being a Statement not volunteered by the said respondent.
8. In so far as the case of Shamaila, respondent No. 2 is concerned the F.I.R., reveals that the Anti- Narcotic Force had conducted the raid with a very heavy contingent at the house referred to above. The possibility of the said respondent slipping away is very remote. Although two members of the raiding party had seen her sitting in the car, yet no identification parade was held to identify hep. We would not like to further dilate upon the evidence referred to by the learned Special Prosecutor as then we would be travelling beyond the permissible limits of making a tentative assessm ent of the evidence on the record.
9. The argument of the learned Special Prosecutor that there is a complete bar under Section 51 of Control of Narcotic Substances Act, 1997 in extending concession of bail in cases punishable with death or transportation of life, is devoid of any merit. The Courts in appropriate cases have the power to grant bail despite the embargo contained in Section 51 of the Control of Narcotic Substances Act, 1997. Reliance is placed on the following cases:-
10. Further, the considerations for grant of bail and cancellation of bail are entirely different. Once a Court in exercise of its discretion grants concession of bail, the same can be cancelled only if the Court comes to a conclusion that the bail had been allowed on artificial grounds and that the bail granting order was perverse and arbitrary Section 497 (5) Cr.P.C, does not command the Court to cancel the bail even when the offences are punishable with death or imprisonment for life and even if the grant of bail is prohibited under Section 497(1), Cr.P.C. Discretion is left in the Courts under Section 497(5), Cr.P.C, which is para- materia with the principle applied for setting aside orders of acquittal, In the said context reference is made to the case-of State v. Abdul Ghaffar (1996 SCM R 678), wherein it has been held by the Hon'ble Apex Court that the Court will riot interfere with an order unless the reasons given therein, are speculative, artificial in nature of the order is based on no evidence or its interpretation of evidence or the conclusions drawn by the Courts below are perverse or foolish resulting in mis-carriage of justice. The. Learned Special Prosecutor has not been able to point out any such illegality or infirmity in the orders of the learned Court calling for interference by this Court.
11: In view of what has been discussed above,, this petition has no merit which is DISMISSED accordingly.