Through this petition filed in terms of section 497(5), Cr.P.C., the petitioner seeks cancellation of bail granted to respondent by the Drug Court, Faisalaba d vide order dated 27.11.2019 in case FIR No.1719 dated 20.11.2019 under sections 23/27, 27(1), 27(4) of the Drugs Act, 1976 registered at Police Station Ghulam Muhammad Abad, District Faisalabad.
2. Learned counsel for the petitioner , inter-alia, contends that pre-arrest bail cannot be granted as a matter of routine and in absence of strong evidence that the accused was being implicated maliciously or due to mala fide; that huge quantity of thirteen drugs unregistered and expired were recovered from the premises occupied by the respondent; that the offences with which the respondent is charged are against society but the learned trial Court has admitted the respondent to pre-arres t bail by ignoring this aspect; that no extra-ordinary circumstances were brought to the notice of the Court which confirmed the ad-interim pre-arrest bail of the respondent and the impugned order is neither based on facts nor law, thus, liable to be re-called and the respondent be committed to jail.
3. Learned counsel for the respondent contended that the principles governing grant and cancellation of bail are altogether different; that the provision of section 497(5), Cr.P.C. was not punitive in nature and A bail once granted can only be cancelled in exceptional circumstances. Added that the petition unde r section 497(5), Cr.P.C. directly before this Court is not maintainable and no reason for bypassing the trial Court has been mentioned, thus, the petition is liable to be dismissed on this score also.
4. We have considered the arguments of the learned counsel for the parties and perused the record with their able assistance.
5. Before we proceed to decide the application on merits, it is appropriate to dispose of the preliminary objection raised by the learned counsel for the respondent regarding maintainability of this petition under section 497(5), Cr.P.C. directly before this Court without approaching the trial Court concerned for cancellation of bail. Ordinarily , where the accused after the grant of bail misuse the same, IA interferes in the proceedings of the trial, extends threats to the witnesses or creates any sort of hindrance in conclusion of trial, the Court granting bail can cancel the same on the basis of evidence before him by exercising jurisdiction under section 497(5), Cr.P.C. but if the bail granting order is without jurisdiction and without observing mandatory provisions of law, then this Court has jurisdiction to entertain the application under section 497(5), Cr.P.C. for cancellation of bail earlier granted to the accused. In the case of Nazir (1971 SCMR 637), the apex Court while interpreting the provisions of section 497(5), Cr.P.C. observed that "the High Court under mistaken belief that the learned Sessions Judge had ignored the evidence of the threats mentioned in the revision petition, although the same were never placed before him" and set aside bail cancellation order of the High Court.
In another case titled " Zia-ul-Hassan v . The State " (PLD 1984 SC 192 ), the apex Court ruled: "Similarly it is not in all cases that the Court granting bail is to be approached in the first instance for cancellation under section 497(5), Cr.P.C. The learned Judge in the High Court has after taking due note of the case law cited before him, has correctly understood, applied and distinguished the relevant rulings. It may be observed that in some cases further wastage of time in moving the lower Court (when time factor is prima facie involved), would be an additional reason for not making direction for moving the lower Court in the first instance. In this case there was ample justification in this behalf."
The apex Court has reiterated similar view in case titled "Muhammad Irfan v. The State and another " (2020 SCMR 2017 ), the observations of their lordships appearing in para-3 at page 2019, read as under:
3. A different regime, somewhat narrowly jacketed, is applied to consider the propriety/desirability of cancellation of bail, once granted by a competent tribunal, on the assumption that apprehended fallout of interim freedom under a interlocutory arrangement, even though granted under error, can be indemni fied through final adjudication, however , the benign concept of condonat ion cannot be applied, without being unconscionable in cases structured upon findings inherently anomalous, flawed or mutually destructive and incons istent, more so in category of offences with restrictions statutorily heavier on offender's release on bail...."
6. On the touch stone of section 497(5), Cr.P.C. and the law laid down in above mentioned cases, we have gone through the facts of the case and examin ed the impugned order . While admitting respondent to pre-arrest bail, the learned trial Court observed in para-2, as under: "The petitioner claim that Shehbaz Drugs Inspector along with Liaquat Naib Qasid came at his medical store and started inspection of the store but the petitioner restrained him from the inspection on the ground that he is not a notified area Drugs Inspector , then Shahbaz Drugs Inspector telephonically called present complainant Drugs Inspector Khalid Mustafa at the spot who was notified for the Punjab and Shehbaz Drugs Inspector placed the shopper on the table before arrival of Khalid Mustafa complainant and asked the complainant Drugs Inspector Khalid Mustafa that has been recovered from the store of the petitioner . Petitioner has denied the recovery from his medical store and claimed that recovery has been attributed and planted falsely as well as malafidely by Shehbaz Drugs Inspector with connivance of present Drugs Inspector ."
It is an admitted position on record that the occurrence took place on 24.10.2019 and the incident was reported on 20.11.2019 by Khalid Mustafa Provincial Inspector of Drugs Iqbal Town, Faisalabad. The respondent was running "Rehman Medical Store" at Nishasta Chowk Ghulam Muhammad Abad, Faisalabad and the complainant during inspection recovered fourteen different drugs lying in the shelves. A few drugs were un-registered and the remaining expired. The recovery of abov e drugs by the complainant was acknowledged by the respondent who signed at the foot of Form-V . As mention ed above, the incident was reported on 20.11.2019, application for pre- arrest bail was filed on 21.11.2019 and the respondent was admitted to pre-arrest bail just after six days of the registration of the FIR i.e. on 27.11.2019. The reasons which prevailed upon the learned trial Court for confirmation of pre-arrest bail as reflected from the order read as under:
(i) the raid was not conducted by a Notified Area Drugs Inspector;
(ii) a fake/ managed recovery was planted upon the petitioner;
(iii) the investigating agency failed to evaluate the version of the respondent;
(iv) the statements of witnesses including Shahbaz and Liaquat Naib Qasids under section 161, Cr.P.C. were not available on the file;
(v) the respondent was self-qualified person and running medical store since fifteen years in the area;
(vi) that the respondent was first offender and; (vii) that nothing was recovered from the possession of the petitioner;
7. We have gone through the record and observed that the above findings/observations of the learned trial Court are based on misreading as the respondent is specifically nominated in the crime report with specific role of keeping unregistered/expired medicines in his medical C store, failed to produce the warranty/invoices thereof. His signatures at the foot of Form-V negates his own version of planting a fake recove ry. The statements of the above mentioned two witnesses recorded under section 161, Cr.P.C. are also available on the police file. Admittedly , the principles governing grant and cancellation of bail are altogether different but it is also settled principle of law that to get concession of pre-arrest bail, mala fide on the part of the prosecution specially the police has to be shown through some cogent/convincing reasons. The innocent and respectable person was going to be involved in a case so as to humiliate him and degrade him in the eyes of society to gain some advantage or to take indirect benefit is also necessary for the said concession. In fact, the concession of pre-arrest bail is a remedy of an exceptional and extra-ordinary nature which has to be granted in exceptional cases and discretion has to be used with care/caution.
If in E all the cases, the concession of pre-arrest bail is allowed to each and every accused of a case, the process of investigation would be strangulated and the investigating agency would not be able to complete its investigation in a smooth manner .
8. A review of the record further demonstrates that the respondent filed the application seeking pre-arrest bail without asserting mala fide in the said petition. We are unable to understand how the learned trial Court concluded that mala fide was lurking behind arrest of the respondent when it was even not asserted in the petition filed by him. It is settled by now that no pre-arrest bail can be granted on the basis of bald assertions of an accused by ignoring material/evidence collected during the investigation. In case titled "Gulshan Ali Solangi and others v.
The State through P . G Sindh " (2020 SCMR 249 ), the apex Court ruled: "Grant of pre-arrest bail is a remedy roote d into equity; at a cost to hamper the investigation, this judicial protection is extended, solely to save the innocent from the horrors of abuse of process of law with a view to protect his dignity and honour . It cannot be granted in every run of the mill criminal case, particularly to the accused confronting prima facie charges structured upon material/evidence, warranting custody , that too, on the basis of petitions/pleas, verification whereof, is consequent upon recording of evidence...."
9. The record divulged that the respondent was afforded opportunity of hearing by the District Quality Control Board, Faisalabad on 02.11.2019. The version of the complainant gets support from the material available on the file. No ill-will or animosity was attributed to any of the PWs for false implication of respondent. The impugned order is neither based on proper evaluation of facts nor the law on the subject, thus, cann ot be sustained and liable to be set aside.
10. In view of the above, this petition is allowed. The order of the learned trial Court dated 27.11.2019 is set aside/ recalled. The bail granted to the respondent is cancelled.