' The petitioner through this petition under section 497/498, Cr.P.C. Seeks pre-arrest bail in case FIR.
No,66/95, dated 23-3-1995 under Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order (4 of 1979) registered with Police Station Kotli Loharan, District Sialkot.
2. Briefly facts of the case are that case F.I.R. No,66 was registered on the complaint of Iftikhar Hussain, A.S.-I./C.I.A., Saddar, Sialkot against the petitioner and six other (co-accused) on the charge that they have brought heavy quantity of heroin from the far off Northern Areas of the country in the house of co-accused Mujaddid Bakhtiar so as to smuggle the same to Nigeria; the co-accused Jan Simon is Nigerian while Shabbir co-accused of Sargodha had a business in Nigeria; on a raid, Mujaddid Bukhtiar, John Simon and Muhammad Younis were arrested from the house of Mujaddid Bukhtiar red-handed while found packing heroin in plastic pipes in order to export the same; the heroin extracted from the pipes and collected lying in the room weighed to be 25,418 grams.
3. The petitioner as was not arrested at the spot, was granted ad interim pre-arrest bail by the learned Additional Sessions Judge, Sialkot on 25-5-1995 which was confirmed by Mr. Zulfiqar Ali Malik, learned Additional Sessions Judge, Sialkot vide his order, dated 7-6-1995. The State moved an application under section 497(5), Cr.P.C. For the cancellation of pre-arrest bail granted to the petitioner and co-accused Shahzad Ahmad. The learned Additional Sessions Judge recalled the bail granting order vide impugned order, dated 14-11-1995, hence this petition.
4. Learned counsel for the petitioner vehemently contended that according to the prosecution version neither the petitioner was present at the spot wherefrom the alleged heroin was recovered nor any overt act has been ascribed to him; the complete challan of the case was already submitted on 15-8-1995 and the learned trial Court had already taken cognizance of the case and there was no justification for filing of petition for cancellation of bail; further contended that there was no apprehension of any ascendance or tampering with the prosecution NI, evidence; bail granting order was neither perverse nor fanciful and that strong and exceptional circumstances are required for cancellation of bail once granted to an accused. Learned counsel also relied on the following cases:--
(1) Muhammad Aslam v. Muhammad Gul and others 1995 PCr.LJ 1733,
(2) Muhammad Ghazan v. Allah Ditta and another 1995 PCr.LJ 240,
(3) Arshad Ali and 2 others v. The State 1995 PCr.LJ 142,
(4) The State v. Sakhi Dost Jan 1992 SCM R 1752,
(5) S. Muhammad Amin Haider v. Niamat Ali and another 1993 PCr.LJ 595,
(6) Allah Jawaya v. Pir Bakhsh and others 1992 PCr.LJ 2226
5. Learned counsel for the State controverted the arguments of the learned counsel by contending that the petition under section 497(5), Cr.P.C. Was moved on the ground that proper assistance was not provided by the prosecution to the Court as during the course of investigation the petitioner was found involved in the heinous offence and is a member of gang involved in trafficking of heroin along with his co-accused; the statement recorded under section 161, Cr.P.C. Of members of raiding party were not brought to the notice of the learned Additional Sessions Judge at the time of confirming pre-arrest bail; the petitioner has been named in the F.I.R. And the plea of alibi taken by the petitioner was rejected by the learned Additional Sessions Judge.
6. I have heard the arguments advanced by the learned counsel for the parties and have perused the record with their able assistance.
7. Guidelines for distinction between pre-arrest and post-arrest bail matter have been provided by the Honorable Supreme Court of Pakistan in the case of Sarwar Sultan v. The State PLD 1994 SC 133 by observing that grant of pre-arrest bail means that the accused is exempted from joining the investigation; the prosecution may suffer for want of recovery of incriminating articles and other material which may be necessary to connect him with the commission of alleged crime. There is sufficient material available on record to show that the petitioner is accused of offence falling within the prohibitory clause of section 497, Cr.P.C. Such as the statements of Muhammad Boota and Muhammad Khalil, Constables and also the statement of Mujaddid Bukhtiar wherein he. Had stated that he along with the petitioner proceeded to Nigeria where they met John Simon and settled a bargain for trafficking heroin from Pakistan to Nigeria by means of footballs prepared by a company, namely, F.M. Company (Faseh and Mujaddid Company) and have already exported about 6,000 footballs from Pakistan to Nigeria containing 10 Kg. Heroin. The plea of alibi before trial Court had rightly been rejected by the learned Additional Sessions Judge as it has been held in the case of Waqar-ul-Haq v. The State 1985 SCM R 974 wherein the learned Judges of the Supreme Court observed that the plea of alibi cannot be adjudged at bail stage in the face of prima facie material.. A huge quantity of heroin weighing 25 Kg., was recovered and as per statement of Mujaddid Bulchtiar co-accused 10 Kg. Had already been exported to Nigeria in 6,000 footballs. The citations relied upon by the learned counsel for the petitioner are not applicable to the facts of the case in hand. I, therefore, find no good ground to differ with the reasoning given by the learned Additional Sessions Judge while recalling the order granting pre-arrest bail to the petitioner. I may further add that trafficking heroin is an offence worse than murder. The result is thus obvious that there are reasonable grounds to believe that the petitioner is guilty of the offence falling within the prohibitory clause of section 497, Cr.P.C.I Dismissed.
8. It is a matter of great concern that the police in the case in hand did not investigate the case properly and also failed to render proper assistance to the Court rather concealed and miss- stated the facts, inasmuch as on 14-11-1995 when the pre-arrest bail granted to the petitioner was cancelled, none of the police official/officer appeared before the Court to apprise about the result of investigation. A perusal. Of Para.5 of Zimni No,9, dated 5-4-1995 shows that investigation from the co-accused apprehended red-handed was postponed till the arrest of Muhammad Asif co- accused who was stated to have been abroad regarding trafficking of heroin. The aforesaid Muhammad Asif was arrested on 26-6-1995 and was remanded to judicial custody on 27-6-1995 without making any inquiry while on the other hand the investigation was kept pending only and only till his arrest. The order of the learned Additional Sessions Judge shows that he had already referred the matter to the S.S.P. And the D.I.-G: but without result.
9. From the conduct of the police what I have prima facie gathered is that the police was in league with the accused as huge quantity of heroin allegedly recovered is sufficient to prove this fact. A copy of this Court order along with the orders, dated 14-11-1995 passed by the learned Additional Sessions Judge, Sialkot be forwarded to Inspector-General of Police, Punjab, Lahore who is directed to ensure that his subordinates being creature of the statute perform their duties as enjoined by the statute and not go out of rails. He shall ensure that the investigation of the case is conducted by a gazette Officer of known integrity and the delinquent Officers are taken to task.
Pre-arrest .