1. ' Applicant is being tried for offence under section 156(1)(8) of the Customs Act, 1969 and his bail plea is rejected by the trial Court, vide order, dated 12-1-1985.
2. ' Prosecution case against the applicant is that he was arrested on 22-12-1984 at 5-45 a.m. From international departure hall of Karachi Airport. He had completed briefing formalities and was bound to take a flight for Rome. On enquiry whether he possessed any contraband items he replied in negative. Resultant search yielded 2,500 grams of Heroin powder in 12 plastic packets which were recovered from the false bottom of the suitcase. Further search led to the recovery of US $ 700 and Rs, 440 Pakistani currency. Tag was attached with suit-case containing Heroin and its counter- foil was recovered from the applicant. After completion of investigation challan has been presented.
3. ' Learned counsel for the applicant urged before me that applicant is entitled to bail on the ground that his case requires further enquiry. He made several submissions which were premature and related to the appreciation of evidence and stated that such questions made out a case for further enquiry. Learned counsel submitted that report from Chemical Examiner has not come, hence it is a question of further enquiry. He further submitted that as per prosecution case 12 plastic packets containing Heroin powder were recovered and only three samples were sent to the Laboratory as such it was a case of further enquiry whether all the packets recovered contained Heroin.
4. ' Learned counsel appearing for State called the I.
0. In the Court who explained that a small portion from the contents of each plastic packet was taken out and in this manner three samples were prepared which were sent to the Laboratory of Chemical Examiner.
5. Correct legal position with regard to the grant or refusal of bail in non bailable offences as envisaged by section 497, Cr. P. C. Is that the Court has to see the material coliected by the prosecution in order to come to the conclusion whether accused is entitled to bail or not and it is specifically provided in clause (1) of the said section that accused shall not be so released on bail if there appear reasonable grounds for believing that la has been guilty of an offence punishable with death or imprisonment for life or imprisonment for 10 years. Clause (2) of said section provide that if it appears to the Court at any stage that there are not reasonable grounds for believing that the accused has committed non-bailable offence but that there are sufficient grounds for further enquiry into his guilt, such accused shall be released on bail. It is, therefore, crystal clear that even in arriving at the finding that there are sufficient grounds for further enquiry, the prerequisite condition to the effect that there are reasonabl grounds for believing that accused is guilty of offence alleged against hi is to be negatived and then only the Court can go into the question whether there are sufficient grounds for further enquiry or not. The intention o the law is to subordinate sufficient grounds for further enquiry to reasonabl grounds for believing that accused is guilty of offence. In plain language it can be said that the Court has to see material collected by the prosecution to connect accused with commission of crime. Perusal of such material in a case of non-bailable offence, if induces the Court to concluding that there are, reasonable grounds to believe that the accused has committed the offence alleged against him, then bail cannot be granted. What are reasonable grounds would be higher than suspicion but certainly lesser than proof. Proof can be produced at the stage of trial. At the time of consideration of bail plea in such a case what material is available with the Court for consideration during the pendency of investigation or after the completion of investigation is normally composed of F. I. R., Mashirnama, police statements, 164, Cr. P. C statements of witnesses, medical report and other such material which is collected during the investigation. From this material inference has to be drawn as to what kind of evidence prosecution proposes to produce against the accused at the trial. If there are inherent defects in the evidence proposed to be produced by prosecution and the conclusion is negatived that there are not reasonable grounds to believe that accused has committed offence, then it can be considered whether there are sufficient grounds for further enquiry and bail can be granted. Otherwise in the normal course defects in the evidence proposed to be produced by prosecution would surface only when the evidence is put to test in the trial Court and the witnesses are examined and cross-examined and pleas proposed to be taken by the accused are put to the witnesses and are brought on the record. It is not permissible for the Courts to enter into fine questions of evaluating evidence before it is recorded and/or go into respective pleas proposed to be taken by the accused at a premature stage when there is no evidence available on the record.
6. In the instant case on the basis of material collected by the prosecution it can be said that there are reasonable grounds for believing that applicant] is guilty of offence alleged against him and is not entitled to bail. Bail application is, therefore, rejected.