' RAHMAT HUSSAIN JAFFERI, J.--- Brief facts giving rise to the present application for cancellation of to the respondent are that on 8-1-2006 at 6-00 a.m. On the spy information, the complainant S.I.P.
Khalid Uddin Khan of Police Station ANF-I1 intercepted the respondent at international arrival lounge of Quaid-eAzam International Airport, Karachi, as he came to Pakistan through Flight No,PK-
604. The luggage of the respondent was searched, out of which two packets containing cocaine weighing 830 grams were secured. The respondent moved an application for grant of his bail before the trial Court which was allowed on the ground that the prosecution failed to arrange private witnesses to act as Mashirs and that the respondent was no more required in investigation or that he will tamper with the evidence of the prosecution witnesses.
2. We have heard the Special Prosecutor A.N.F., Advocate for the respondent, perused the record of this case very carefully and case-law cited at the Bar.
3. The learned Special Prosecutor A.N.F. Argued that the case of the prosecution is fully supported by the witnesses; that the incident took place inside the international arrival lounge of airport, therefore, the private witnesses were the passengers who would have not acted as Mashirs in the case; that the spy information was received before 4-30 a.m. In the night, therefore, the private witnesses could not have been arranged; and that the grounds for grant of bail favoured with the trial Court are not sufficient to grant the bail to the respondent.
4. Conversely, the learned Advocate for the respondent has mainly argued that the police party reached the airport on a spy information, therefore, they could have arranged private witnesses to act as Mashir but they did not do so, therefore, a doubt has been created with regard to the recovery hence the trial Court has rightly granted the bail to the respondent. He has relied upon the case of Hakim Mumtaz Ahmed v. State PLD 2002 SC 590.
5. We have given due consideration to the arguments and found that the complainant received spy information that a person carrying narcotic would come through an aircraft PK-604 which would reach at Karachi at 4-30 a.m. As such, the information was received at odd hours of night.
The police party went to the airport. They remained there. At about 6-00 a.m. When the respondent reached the international arrival lounge of airport his luggage was checked from which 830 grams of cocaine were recovered. Therefore, in such a situation the arranging of two private witnesses would have been highly impossible for the police due to odd hours of night. Furthermore, the Honourable Supreme Court of Pakistan in the case of State v. Muhammad Amin 1999 SCM R 1367 observed that the provisions of section 103, Cr.P.C. Under which the association of two witnesses are made applicable, are not attracted when the recovery is made at airports. Relevant portion appearing at page 1371 reads as under:-- "(11) We tend to approve the construction ante placed by the Supreme Court of Azad Jammu and Kashmir on section 103 of the Cr.P.C. To the extent of compliance thereof. Section 103 of the Cr.P.C.
Containing the words "respectable" and "locality" for the two witnesses as required thereunder are crucial. Notwithstanding the emphasis laid on the word "respectable" or "locality" or on both, this Court was of the view that `respectability' of a witness certainly did not depend upon the richness or higher status of a person and that the old concept of respectability in the dictatorial rules of Kings, and Nawabs must come to an end now with the increase of education in a civilized and democratic society. Be that as it may, the search of the baggage and person at the Airport or on the Highways in generally not amenable to the strict compliance of section 103 of the Cr.P.C. It is by now settled law that provisions of section 103, Cr.P.C. Do not apply if the recovery is not made in pursuance of search of a house, but is made elsewhere, for instance on the Highways or the road sides or the public places like Railway Stations, Bus Stands and the search of baggage or of the person at the Airports."
6. Even otherwise by virtue of section 25 of Control of Narcotic Substances Act, 1997 the provisions of section 103, Cr.P.C. Are not applicable in the cases of Control of Narcotic Substances Act, 1997.
7. The learned Advocate for the respondent has relied upon the case of Hakim Mumtaz Ahmed (supra) in which the Honourable Supreme Court of Pakistan, aprat from other considerations, observed that the police should have associated respectable persons of the locality in view of earlier information ;received by the police. In this connection it is pointed out that in the said case the police raided a Dawakhana of the accused involved in the case and from that the opium was secured. As such, the search was made from a place, therefore, keeping in view the said place of search the Honourable Supreme Court of Pakistan made such observation. In the present case the search was not made from any place but it was made in the lounge of airport where the provisions of section 103, Cr.P.C. Were not attracted, therefore, the association of two private witnesses was not the requirement of law. Even otherwise the private persons do not come forward to become witnesses in such type of cases due to various reasons and particularly on airports. The similar point was considered by the Honourable Supreme Court of Pakistan in the case of Muhammad Amin (supra). It has been observed as under:-- "... It would, thus, be noticed that two independent witnesses are generally required to witness the recovery. This requirement of law is, however, subject to exceptions. It is common experience nowadays that due to apathy, the public-at-large are hesitant to come forward to witness the recovery in criminal cases for fear or reprisals in view of the present deteriorating law and order situation in the country. In the instant case, however, there is an additional circumstance that the recovery was made at the Quaid-e-Azam International Airport, Karachi where the officials of various departments/agencies might have been available. Nonetheless no passenger would have been wilfully prepared to stand witness to the recoveries inasmuch as they could not stand the strain of being called upon from abroad to testify to the aforesaid recoveries."
8. Thus, the above rule is fully applicable to the facts and circumstances of the case. However, this is a bail application where deeper appreciation of evidence is not permissible. All these points can be properly thrashed out at the time of trial but the fact remains that the prosecution has sufficient evidence connecting the respondent with the commission of this crime. The respondent has remained in jail for a period of only two months. In the case of Hakim Mumtaz Ahmed the accused was in jail for a period of one year. As such, the facts of the said case are distinguishable from the facts and circumstances of the present case.
9. Further, the Honourable Supreme Court of Pakistan in a case Afzaal Ahmed v. State 2003 SCM R 573 rejected the bail plea of an accused in a case of involving 600 grams of heroin on the ground that "needless to mention here that a person accused of spreading a deadly poison i.e the narcotics, in any society, is not the kind of person who qualifies for the grant of any discretionary relief unless such a person could demonstrate that he was entitled to the grant of bail on account of the reasons mentioned in section 497(2) of the Cr.P.C.". In the present case no such grounds have been shown to exist.
10. After considering the material available on the record we are of the considered view that there are reasonable grounds for believing that the respondent is involved in the case. The trial Court was not justified in granting the bail. Therefore, we had set aside the impugned order and allowed the application by our short order dated 20-12-2006. These are the reasons of the said short order.
Bail cancelled.