' MUHAMMAD KAMRAN KHAN MULAKHAIL, J.---This application for cancellation of bail has been filed by the Regional Director, Anti Narcotics Force Balochistan Quetta, (ANF) against the respondent Abdul Harrieed, who was admitted to pre-arrest bail vide order dated 27-5-2014 passed by the Judge Special Court (CNS) Balochistan Quetta ("trial court") in case F.I.R. No,02 of 2014 dated 12-2- 2014, under sections 9(c) and 15 of the Control of Narcotic Substances Act, 1997 ("CNS Act") lodged with the Police Station ANF Turbat.
2. The brief facts out of which this application has arisen are that on the stated date and time, a raiding party was constituted by the ANF in pursuance of the spy information, that a huge quantity of heroine is being smuggled from Turbat to abroad by the notorious smugglers Haji Hameed, Khaleel and Mohsin in a vehicle Toyota Surf. The raiding party cordoned the Gwadar road and started checking vehicles, when at about 6:00 pm the said vehicle was seen, coming from Turbat.
On pointation of the informer, the vehicle was intercepted in which the driver Mohsin son of Lal Hussain was apprehended. Who on the spot, when interrogated, disclosed that he along with one Haji Hameed and Khaleel are partners in drugs business and today he was going towards Jeevani to smuggle heroine abroad. On pointation of the accused five parcels were recovered in which 87 kg heroine was found. The ANF raiding party after compiling the requisite documents arrested the accused and the F.I.R. Was lodged.
3. The learned Special Prosecutor contended that under section 51, offences falling within the ambit of the CNS Act are non-bailable in nature, but the trial court granted bail to the respondent/accused without appreciating the fact that he was nominated in the F.I.R. And his name was disclosed by the principal accused. He next added that the respondent/accused has failed to allege any mala fides to the ANF raiding party, which is a condition precedent for granting ad-interim bail. He maintained that due to pre-arrest bail granted to the respondent/accused the investigation could not be conducted properly and during the period of ad-interim bail the respondent/accused did not cooperate with the investigating agency. He further added that the respondent/accused is a well-known drug trafficker and a number of narcotics related cases have been registered against him. He finally urged that the order passed by the trial court is tantamount to rendering verdict of acquittal and due to such observation a very serious prejudice has been caused to the prosecuting agency. He finally prayed for setting aside the impugned order by way of cancellation of bail in order to interrogate the respondent/accused.
4. Syed Ayaz Zahoor, Advocate Supreme Court, the learned counsel for respondent/accused strongly opposed the contention and contended that prior to surrender of the respondent/accused for ad-interim bail, the challan was already subinitted before the trial court, therefore, the contention that the respondent/accused is required for further investigation has no force. He added that during the ad-interim. Bail the respondent/accused was fully cooperating with the investigation agency and he was regularly appearing before the investigation officer. He pointed out that on 13-5-2014 the respondent/accused was on ad-interim bail, when his identification parade test was conducted under the supervision of the Judicial Magistrate-XII, Quetta, in connection with F.I.R. No,03 of 2011, which too relates to the ANF. He further maintained that the patent and latent mala fides of the ANF were floating on surface; therefore, the respondent/accused was rightly admitted to bail. He submitted various documents and also a copy of passport of the respondent/accused with the contention that at the time of alleged recovery the respondent/accused was out of the country, who had made exit from Karachi International Airport for Dubai on 9-2-2014 and returned on 18-2-2014. He further added that the disclosure made by the principal accused is not admissible in evidence against the respondent/accused; therefore, he was rightly admitted to bail. He finally urged for dismissal of the application.
5. We have heard both the parties and have also minutely perused the record of the case with their assistance and observed as follows:--
(a) The F.I.R. In the instant case was registered on 12-2-2014 at 9:30 p.m.
(b) According to the F.I.R. The vehicle was intercepted and the principal accused therein was apprehended at 6:00 pm during the broad-daylight on Gwadar-Turbat highway.
(c) The area from which the alleged recovery was shown is GwadarTurbat highway; admittedly except the principal accused Mohsin no one else was arrested.
(d) The F.I.R. States that the principal accused disclosed the name of the respondent/accused during the on-spot interrogation but no private person was associated during the course of alleged disclosure made by the principal accused.
(e) The F.I.R. Was lodged on 12-2-2014 and according to the prosecution case the accused respondent was fugitive of law and remained absconder but the documents submitted by the respondent/accused show that he had been to abroad at the time of alleged recovery and on his return and on having come to know about registration of the case against him he surrendered before the court and obtained ad-interim pre-arrest bail.
(f) Although section 51 of the CNS Act imposes an embargo on grant of bail to a person/an accused in a narcotics case but following the law of precedents and the dictum laid down by the Hon'ble Apex court, the right of bail cannot be withheld as punishment, therefore in appropriate cases the courts can grant bail.
(g) The allegation of mala fides on part of prosecution agency is prima facie plausible, when the respondent/accused despite being absconder in another case relating to the ANF, was also appealing before this court and that too in a pending litigation with the ANF but despite his nomination by name no effort for his arrest has been shown in the record.
(h) For purpose of cancellation of bail the person/agency seeking cancellation of bail, has to show that either the order passed by the court is perverse or against the principles of law of bail or the accused after being admitted to bail is trying to temper the evidence or there is any apprehension of repetition of the offence. Neither any such ground was agitated nor argued in the instant case.
(i) The alleged disclosure made by the principal accused is not admissible as evidence, though the evidentiary value of such statement is to be seen at trial but same can only be termed as a statement under section 161 of the Criminal Procedure Code, 1898, therefore, cannot be considered for purpose of cancellation of bail and case against the respondent/accused requires further probe. Reference is made to the judgment rendered in The State v. Abdul Qayum (2001 SCM R 14).
' For the foregoing reasons we are not inclined to interfere with the order passed by the learned Special Judge (CNS) Quetta.
' Thus the application being devoid of merits is dismissed accordingly.
' However, the observations made herein above are meant for disposal of this application, which shall have no bearing on merits of the case.