' Through this single order, we intend to dispose of Criminal Miscellaneous No,932-B of 2012 and Writ Petition No,1847 of 2012 as in both the matters, the petitioners seek their pre-arrest bail in case F.I.R.
No,40 of 2011 registered at Police Station Anti-Narcotics Force, Rawalpindi under sections 9(c), 14, 15 and 16 of. Control of Narcotic Substances Act, 1997 read with prohibition as per Schedule-V of Controlled Chemical Table-I of United Nations Convention, 1988.
2. The petitioner Makhdoom Shahabuddin, before approaching this Court for his pre-arrest bail, got interim protective transitory bail from Peshawar High Court, Peshawar in Criminal Miscellaneous No,851-P of 2012 wherefrom he was given a protection for 7-days to approach the competent Court. In the petition moved before the Peshawar High Court, Peshawar, it was a particular stance of said petitioner that he may be protected by way of transitory bail in order to enable him to appear before the Special Court Anti-Narcotics Force, Rawalpindi for his regular pre-arrest bail.
3. The petitioner Syed Ali Musa Gillani, in similar manner, got protection from the High Court of Sindh at Karachi by means of order dated 2-7-2012 in C.P. No,D-2427 of 2012 and this petitioner too was protected from his apprehended arrest in order to enable him to surrender before the "trial Court".
4. In such view of the matter, when at the very outset of the hearing, the learned counsel for the said petitioners were confronted as to why the learned trial Court, which is functioning regularly, has been bypassed. Their spontaneous response was that as earlier this Court has entertained Criminal Miscellaneous No,1760-B of 2011 titled "Ansar Farooq v. The State" and Criminal Miscellaneous No,1912-B of 2011 titled "Iftikhar Ahmed Khan Babar v. The State" in the same criminal case, therefore, as a matter of propriety, now the petitioners are before this Court. On having considered the earlier filing of the bail petitions and disposal thereof directly by this Court, the petitions were entertained and are being decided here in this Court but this should not be taken as a precedent to quote in future in order to bypass the trial 'Court.
5. The facts relevant for the disposal of present petitions are that through the above noted F.I.R., Riaz Ali, Assistant Director in Anti-Narcotics Force informed, the police of said force that under the directions of the Secretary Government of Pakistan in Ministry of Narcotics contained in letter dated 19-9-2011 the commission of offence was being reported to the effect that on 3-2-2011 in 28th Sessions of National Assembly of Pakistan on a "call attention notice" the Federal Minister for Health (Makhdoom Shahabuddin) assured the House for initiation of action against two companies which got issued unlawful licenses to export ephedrine from Pakistarr but later instead of export, the same was converted into local use and was sold within Pakistan. The registration of said two companies was ordered to be cancelled and appropriate action against the same was to be initiated. It was reported that Messrs Berlex Lab International Multan got issued ephedrine on 25-3- 2010 and 22-10-2010 to the quantity of 6000 kilograms and 500 kilograms respectively for export purposes and that Messrs Danas Pharmaceutical (Pvt.) Limited, Islamabad also got issued ephedrine on 15-4-2010 and 9-6-2010 weighing 1500 kilograms and 1000 kilograms respectively for the same purpose. It was alleged that on account of some undue influence by some influential persons, later on the said companies without any lawful justification got changed the allocation and converted the quantity of ephedrine to be used and sold within Pakistan and in such illegalities, the said companies were actively assisted by the then Director-General (Health) and other officials of Ministry of Health in Government of Pakistan.
6. When the Investigating Agency in Anti-Narcotics Force started probe in the matter in addition to others, one Dr. Rasheed Jooma, Director-General (Health) in Ministry of Health in Government of Pakistan at the relevant time and a whole sale dealer in the business of medicines Rizwan Ahmed Khan were associated in the investigation and during such process firstly they were pardoned on condition of making a full and true disclosures of the whole of the circumstances within their knowledge relatable to the offence and their statements as approvers were recorded by the trial Court. The first one, Dr. Rasheed Jooma, Director-General (Health) in his statement in clear and absolute manner has made disclosures that it were these two petitioners who directly and through their front men who were specifically named in such statement exercised their undue influence and quota of ephedrine allocated to Messrs Belex Lab. International and Messrs Danas Pharmaceutical (Pvt.) Limited mentioned above were converted from their export quota to local consumption. Similar was the substance of the statement of other approver Rizwan Ahmed Khan.
7. Upon receipt of such information, the Anti-Narcotics Force got issued the warrants of arrest for the present petitioners and in order to avoid the arrest in the present case, they firstly approached the High Courts at Peshawar and Karachi and then are before this Court seeking relief of the pre- arrest bail in the titled case.
8. The learned counsel for the petitioners mainly argued that except the statements of approvers, there is no other incriminating material with Anti-Narcotics Force to connect the petitioners with the alleged crime and that the statement of the approvers has no substantial value and is a weak type of evidence and liberty of a person cannot be curtailed merely on the basis of such statement. With regard to Makhdoom Shahabuddin petitioner, it has been argued that attempt to arrest him is tainted with mala fides, for, his warrant of arrest was obtained on that very day when he was going to be elected as Prime Minister of Pakistan from the Session of the National Assembly but on issuance of his warrant of arrest in the present case, his candidature was changed and he was deprived from being elected as Premier of Pakistan.
' With regard to other petitioner Syed Ali Musa Gillani with no particular reference any mala fide has been alleged against the Investigating Agency.
' It is further added on behalf of the petitioners that ephedrine is not a narcotic substance and Anti- Narcotics Force has no jurisdiction either to register a case relatable to ephedrine nor competent to investigate the same.
9. Conversely, the learned Special Prosecutor on behalf of Anti-Narcotics Force has vehemently opposed the request for grant of pre-arrest bail to the petitioners maintaining that there is sufficient material on record connecting the petitioners with heinous crime and the petitioners were the main characters behind all the illegalities committed in grant of quota to such newly- constituted companies in excess of their entitlement, to convert the export status of said ephedrine to that of local consumption and then let the said companies to dispose of their said quota of hue quantity of ephedrine in unauthorized manner to some unknown hands. According to the learned Special Prosecutor, the present petitioners are responsible in bringing bad name to Pakistan in International Community and it is a glaring example of misuse of their authority and influence.
10. We have considered the respective arguments of the parties and perused the record. IL The issue as to whether ephedrine does fall within definition of Narcotic Drug, psychotropic substance or Controlled Substance has already been examined by this Court in Writ Petition No,2808 of 2011 and by way of detailed judgment passed on 24-4-2012, it has been held that in view of the definitions of Controlled Chemical as provided in A Control of Narcotic Substances (Regulation of Drugs of Abuse, Controlled Chemicals, Equipment and Materials) Rules, 2001 read with Schedule-V thereof and the clauses of 1988 Convention, it is clear that ephedrine was included as Controlled Chemical/Narcotic Substances. The findings which were arrived at on 24-4-2012 by this Court have reportedly nowhere been challenged, thus presently are binding to be accepted by this Court.
12. The prosecuting agency is equipped with the statements of approvers connecting the present petitioners with the alleged crime. Such material has strongly been objected to by the petitioners.
We have observed that Dr. Rasheed Jooma and Rizwan Ahmed Khan have attained the status of approvers after fulfilling all the codal formalities as provided in section 337, Cr.P.C. And in view of subsection (2) of the said provision of Law, person accepting a tender under this section will be treated as a witness in the subsequent trial. As such the statements made by the approvers would have the evidentiary value and presently their statements made in their capacity of approvers would be a material, relevant for consideration and the same cannot be brushed aside.
13. On the point of mala fide as noted earlier, it was to some extent argued on behalf of Makhdoom Shahabuddin that on account of issuance of warrants of arrest in the present case, he was .Dislodged from his candidature as Prime Minister of Pakistan. It is hardly to believe that the Investigating Agency in ANF on the basis of some mala fides initiated the proceedings requiring arrest of the said petitioner. At no costs any one from Investigating Agency would be in an advantageous position to be replaced as candidate for Prime Minister by dislodging Makhdoom Shahabuddin from such candidature and therefore, when obviously no one from the investigating agency is amongst the beneficiary of such change in candidature of Makhdoom Shahabuddin, element of mala fides cannot be attached with the officials of such agency on that score.
' On behalf of the other petitioner, Syed Ali Musa Gillani, the mala fides have not seriously been highlighted.
14. Investigation is something where, after registration of a criminal case, the investigator and the person against whom an accusation is made are jointly supposed to enter into the efforts to reach at some final conclusion qua the allegations. In the present case, although to some extent after getting the interim protection in shape of ad-interim bail, the petitioners participated in some sessions with investigators but there seems to be no material, effective and meaningful investigation in the matter which in fact is the requirement. This fact is also indicative from filing of C.M. No,1183 of 2012 by petitioner Syed Ali Musa Gillani wherein he made a complaint that the investigators are not effectively associating him in process of investigation. It would be in the fitness of things that both, the Investigating Agency and the petitioners would provide ample opportunity to sit together and to try to reach some logical conclusion with regard to the allegations with which the petitioners are being confronted presently.
15. The Hon'ble Supreme Court of Pakistan in Murad Khan v. Fazal-e-Subhan and another (PLD 1983 SC 82) has held that the pre-arrest bail can only be granted if the proposed arrest is for ulterior motive such as humiliation and unjustified harassment by a prosecuting agency motivated by motives so as to cause irreparable injury to reputation and liberty of the accused persons. All such elements are missing in the present case rather have not been raised by the petitioners.
16. Prima facie the petitioners have misused their status and by their unauthorized and illegal acts, the commission of offence as has been registered through F.I.R. With the Anti-Narcotics Force was made possible. The process of investigation is underway and for an effective' and meaningful investigation, the active and constant association of the petitioners with the investigating agency is the requirement which purpose cannot be achieved by putting the present petitioners at large.
17. For what has been discussed above, we are of the considered view that the petitioners are not entitled to extraordinary relief of pre-arrest bail and thus we arc not inclined to grant such relief to petitioners (Makhdoom Sahahabuddin and Syed Ali Musa Gillani) in Criminal Miscellaneous No,932-B of 2012 and Writ Petition No,1847 of 2012, thus resultantly both the petitions are dismissed.