ORDER Through this single order we intend to decide Crl. Misc. 10816-B.C/2011 and Crl. Misc. No. 12467-B.C/11, as both these petitions have arisen of of the same F.I.R. No. 28/2010, registered in Police Station, ANF, Sialkot, under Section 9(c) of the Control of Narcotic Substances Act, 1997.
2. Through Crl. Misc. No. 10816-B.C./11 the present petitioner has sought cancellation of pre-arrest bail granted to Muhammad Iqbal and Saleem Ahmed/respondents Nos. 1 and 2, by the learned Special Judge, CNSA, Lahore, vide order dated 22.7.2011. In the other petition bearing Crl. Misc: No. 12467-B.C/11, he is seeking withdrawal of the order of the learned Special Judge, CNSA, Lahore, dated 14.9.2011 whereby he has granted pre-arrest bail to respondent No. 1/Syed Hayat Shah.
3. Brief facts of the case in hand are that the present petitioner was arrested in a case arising of of F.I.R. No. 28/10, dated 23.12.2010, registered in Police Station, ANF, Sialkot, under Section 9(c) of the Control of Narcotic Substances Act, 1997, at the instance of Syed Hayat Shah, S.I. /SHO/complainant for an occurrence in which 1100 gram 'charas' was allegedly recovered from his possession.
However, during investigation, the present petitioner was found to be innocent and report for his discharge was submitted. Consequently, he was acquitted from the charge by the learned Trial Court. Nevertheless during the inquiry/investigation, it transpired that Syed Hayat Shah, S.I/SHO (respondent No. 1 in Crl. Misc. 12467-B.C/11) had falsely implicated the petitioner in the said case in collusion with Muhammad Iqbal (brother-in-law ('Behnoi') of the petitioner) and Saleem Ahmed (real brother of the petitioner), In view of the findings of the inquiry officer recorded in the report submitted under Section 173, Cr.P.C. Qua F.I.R. No. 28/10, dated 23.12.2010, the aforesaid respondents applied and were granted pre-arrest bail by the learned Special Judge, CNSA, Lahore.
4. The learned counsel for the petitioner contended that facts and circumstances of the case did not warrant grant of pre-arrest bail to the respondents. He submitted that a huge quantity of 'charas' weighing 1100 k.g. Was planted by the respondent/Syed Hayat Shah, S.I/SHO in connivance with other respondents/Muhammad Iqbal and Saleem Ahmed and this fact, has been proved during investigation and inquiry conducted by the Deputy Director, ANF, Lahore. He argued that as in the inquiry/investigation, the recovered 'charas' was found to be planted one, it was proved that the said 'charas' belonged to the respondents. He further argued that as the respondents have committed an offence falling within the ambit of Section 9(c) read with Section 15 of the CNSA, 1997, which is punishable with death or imprisonment for life, or imprisonment for a term which may extend to fourteen years alongwith fine, they were not entitled to the concession of pre-arrest bail.
He has Contended that connivance of all the three accused/respondents is proved from the data of their cellular phones, which has been brought on the record of the investigation.
5. The learned Special Prosecutor, ANF has also supported the instant petition. He argued that the prosecution has sufficient material to connect the accused/respondents with the commission of an offence falling under Section 9(c) read with Section 15 of the CNSA, 1997, which falls within the prohibitory clause of Section 51 of the said Act. He further argued that the accused/respondents are required by the police for further investigation. He next contended that the accused/respondents were not entitled to the extraordinary relief of pre-arrest bail and the bail granting orders are erroneous and the result of improper exercise of discretionary powers.
6. The learned counsel for the accused/respondents/Muhammad Iqbal and Saleem Ahmed contended that nothing was recovered from their possession and the only allegation against them was that of providing the narcotic substance to Hayat Shah, S.I/SHO for planting on the present petitioner. He further contended that the prosecution has no evidence to prove that the said narcotic substance was supplied by the respondents to the complainant/Hayat Shah. He submitted that the case of the accused/respondents being that of further enquiry, the learned Trial Court ha$ rightly extended them the benefit of pre-arrest bail. Lastly, argued that the bail granting order was passed by the learned Trial Court in accordance with law and the same does not call for interference by this Court. The learned counsel for the respondent/Syed Hayat Shah submitted that no offence under Section 9(c) read with Section 15 of the CNSA, 1997 is made of against him and he has been falsely involved in the instant case by the Investigating Officer.
7. Arguments heard. Record perused.
8. Admittedly, the present petitioner has been exonerated from the charge of possessing 1100 grams of 'charas'. As per the investigation/inquiry, the recovered 'charas' was supplied by the respondents/Muhammad Iqbal and Saleem Ahmed to Hayat Shah, S.I/SHO, who had planted the same on the present petitioner. Their connivance with the other accused/Hayat Shah, prima facie, proves from the data of their cellular phones. As such, sufficient material was available to connect them with the commission of the offence; the punishment of which falls within the prohibitory Clause of Section 51 of the Control of Narcotic Substances Act, 1997. They are required by the police for further investigation, In the circumstances, it was not a fit case for the grant of pre-arrest bail to the accused/respondents.
9. So far as the case of the third accused/respondent/Syed Hayat Shah is concerned, it is observed that he has been granted pre-arrest bail on the statements of the Public Prosecutors made before the learned Trial Court on 14.9.2011 to the effect that if the prosecution collects some material against him, he will be arrested, with the permission of the Court. On the other hand, the learned Special Prosecutor/Mr. Tariq Saleem Sheikh, at the time of hearing of bail petition of Muhammad Iqbal and Muhammad Saleem/respondents had already submitted before the learned Trial Court, on 22 7.2011, that the aforesaid two accused had provided narcotics to plant upon Naeem-ul-Haq.
The statement of the learned Special Prosecutor/Mr. Tariq Saleem Sheikh dated 14.9.2011 prima facie, seems to be inconsistent with his earlier statement dated 22.7.2011 and aimed at extending undue favour to the accused/Syed Hayat Shah. However, the learned Special Prosecutor/Mr. Arshad Mehmood Sipra submitted before this Court that physical custody of the accused/respondent is required by the police for further investigation and collecting material against him. Even otherwise, petitioner's innocence having been proved during the investigation and thereafter, his acquittal from the charge, prima facie, proves that the recovered 'charas' belonged to the accused/respondents.
There being no ill-will or element of mala fide on the part of the prosecution, the accused/respondents were not entitled to the concession of pre-arrest bail, which is an extraordinary relief. The order granting pre-arrest bail to the accused/Syed Hayat Shah is also patently illegal as the learned Special Judge, CNSA has ordered not to arrest the accused/respondent without permission of the Court, In case, the impugned bail granting orders are hot recalled, the investigating agency is likely to be deprived of its right to investigate and collect further evidence against the accused/respondents. Hence, the impugned orders have resulted in miscarriage of justice.
9. In view of the above discussion, both the petitions are accepted and the impugned orders dated 22.7.2011 and 14.9.2011, passed by the learned Special Judge, CNSA, Lahore are set aside. Resultantly, pre-arrest bails granted to the accused/respondents, namely, Muhammad Iqbal, Saleem Ahmed and Syed Hayat Shah are cancelled.