' AMIR HANI MUSLIM, J.---This Criminal Petition for Leave to Appeal has been filed against the order dated 5-5-2014 passed by the Single Judge in Chamber of the learned High Court of Sindh in Criminal Bail Application No. 364 of 2014, whereby the Single Judge in Chamber has granted bail to respondent Aleem Haider in the sum of Rs.5,00,000.
2. Brief facts arising out of the F.I.R. Are that on. 29-7-2013, SI Ali Gul of Police Station ANF Clifton, Karachi on the directions of his seniors prepared a raiding party and proceeded to KICT Sea Port for checking a Container No.TRIU-847139-7. On reaching there with the raiding party, he found one Muhammad Muneer clearing agent near the said container and on inquiry, the said Muhammad Muneer delivered export documents in respect of the said container and consignment note besides commercial invoice to Sub-Inspector. He informed the Sub-Inspector that he is the owner of FM Brothers, a clearing agency and that Hameeduddin Babar forwarding agent had asked him to get custom clearance and said Hameeduddin Babar named Aleem Haider as owner of the consignment, therefore, Aleem Haider was tactfully called at the gate of KICT Sea Port. The keys of the container were recovered from clearing agent Muhammad Muneer, who informed that he has placed the lock on the container after its clearance from the Custom on 28-7-2013 as it was yet to be checked by ANF. Thereafter thorough search of the container was made and 202 KG heroin was recovered from folding of 1896 cartons, which were wrapped in different packets. The consignment was meant for export of fresh apples to Sri Lanka and each carton was carrying fresh apples.
However out of 2550 cartons 1896 cartons were having folding wherein the heroin was concealed.
The respondent Aleem Haider was arrested at the spot who informed that original owner of consignment is Shakil Ahmed resident of Charsadda. On search of accused Aleem Haider, amongst other things, one receipt of Faizan Traders in the name of Shakil and one photocopy of CNIC of Shakil Ahmed were also recovered. After completing all the formalities, Sub-Inspector brought the accused at police station, registered the case and retained the container. After completion of investigation, the accused was challaned in the Court of Special Judge, CNS-I, Karachi.
3. It is contended by the learned Counsel for the petitioner that the learned High Court has overlooked the material collected by the investigating agency while granting bail to the respondent. He contended that 161, Cr.P.C. Statements of the prosecution witnesses namely Munir, Mohammad Nazir, Hameeduddin, Ali Nawaz, Rehman were not considered at all, who have fully implicated the respondent. He next contended that respondent had received a sum of Rs.15,00,000 in two instalments through online banking and the call data record collected by the investigating authorities has also been procured which clearly establishes the connections of the respondent with Shakeel Khan. He submits that the learned High Court while reversing the order of the trial court had relied upon the contents of the F.I.R. And the Challan. He submitted that the huge recovery of the heroin weighing 202 KG Was affected in presence of the accused on 30-7-2013.
According to learned Counsel the reasons recorded by the learned Judge in Chamber were contrary to the material collected by the investigating officer and the learned Judge has not even perused the contents of the challan, which was the calendar of the prosecution witnesses and gist of relevant material connecting the respondent with the alleged crime. He submitted that in such like cases, the grant of bail by the learned. High Court in exercise of its discretion contrary to the material collected by the investigating officer, is not in conformity with the settled principles governing the grant of bail. He therefore, contended that bail of the respondent be cancelled.
4. The learned Counsel representing the respondent has contended that prosecution has failed to collect sufficient material to connect the respondent with the alleged crime. He submitted that undertaking of the petitioner was also under duress.
5. We have heard the learned Counsel for the parties and have perused the record.
6. We have noticed that the respondent in fact was the main exporter of the consignments of fresh apples to Sri Lanka, which he had sent on the licence/export form of Jawwad. From the record, it appears that he contacted Hameeuddin freight forwarder for export of fresh apples, who in turn hired the services of Muhammad Munir clearing agent. It is claimed that an undertaking was given by the respondent that the cartons of fresh apples, which he is exporting, will not have narcotics substance. The respondent had got the go down of the Shandab Shooq through manager Rehman, who was also examined by the investigating agency and has stated that the respondent obtained possession of the go down for packing apples. Ali Nawaz driver of the trawler, which contained cartons of apples and the concealed heroin in the cartons, was also examined who had stated before the investigating officer that these cartons were delivered to him by the respondent.
The learned Single Judge in Chamber had referred to the contents of the F.I.R. And challan, but failed to notice the statements of prosecution witnesses, who had fully implicated the respondent nor had discussed the well-reasoned order of the trial Court refusing bail to the respondent.
7. What is most disturbing is that the learned Judge in Chamber has observed in para 5 of the impugned order as under:- "At this stage evidence and statements of prosecution witness under section 161, Cr.P.C. Prima facie do not connect the applicant with the offence. No deeper appreciation of evidence is possible at the bail stage. Accused apparently was not consciously/actively involved in the offence charged with, therefore, his case needed further inquiry."
8. The grant of bail or its refusal depends on the material inclusive of 161, Cr.P.C. Statements of prosecution witnesses, which could not be brushed aside on the ground that it would require a deeper appreciation of evidence. The prosecution witnesses in their 161, Cr.P.C. Statements have fully implicated the respondent connecting him c with the alleged crime and a huge quantity of heroin has also been affected, therefore, the observations of the learned Single Judge in Chamber are not in consonance with the elementary principles for grant of bail.
9. We, for the aforesaid reasons have converted this petition into appeal and allowed by our short order dated 5-11-2014, which reads as under:-- "For reasons to be recorded later this petition is converted into appeal and allowed. The bail granted to the respondent Aleem Haider by the High Court of Sindh is cancelled. At the same time D the trial Court shall expedite the trial as we are informed that charge has been framed. The 1.0.
Present in Court shall produce the witnesses on the next date and the trial be concluded preferably within three months."
10. The observations made herein above are of tentative nature and the trial Court shall not be influenced by the same at the time of deciding the case on merits.