TASADDUQ HUSSAIN JILANI, J: --The petitioner and two others were proceeded against vide F.I.R.
No.14, dated 14-4-1995, Police Station P.N.C.B., Model Town, Lahore, under Articles 3 and 4 of Prohibition (Enforcement of Hadd) Order, 1979 (P.O. Order No.4, 1979) read with section 9 of the Control of Narcotic Substances Ordinance, 1995.
2. The prosecution story as given in the F.I.R. Lodged on the statement of Ikramullah Bandial F.I.O.
Briefly stated is that Col. Muhammad Younas, Deputy Director of Pakistan Narcotics Control Board received an information that the petitioner was indulging in inter-district and inter-provincial drug smuggling and that he will transport huge quantity of heroin to his `Dera' at Sheikhupura in his Suzuki Car. Pursuant to the order of the said Deputy Director, a raiding party was constituted consisting of officials of PNCB and of the concerned police station. The said raiding party installed a picket at Lahore Sheikhupura Road. At about 12-00 (noon) a Suzuki Car (Mehran) (with an M.NA.
Plate mounted on it) in which a police constable in uniform armed with G-3 rifle was sitting emerged on the scene. It was mentioned to stop, but instead of haulting the car, the driver accelerated the speed and the constable sitting therein resorted to firing at the raiding party. After breaking the barrier, the car turned on the Sheikhupura Road. Col. Muhammad Younas, Deputy Director of PNCB who was heading the raiding party, chased the said car and in that effort his vehicle collided with the Suzuki car. As a result of the collision, both the vehicles got damaged. The driver of the said Suzuki car, Muhammad Siddique, was found to be the business associate of the petitioner and Abdul Sattar constable, an official guard (Gun Man) of the petitioner. On search, 35 Kilograms of heroin and 30 Kilograms of Charas wrapped in bags was recovered from the said Suzuki car alongwith a G-3 rifle, 175 alive bullets, a .22'2 rifle and 65 alive cartridges.
3. On query, both the accused disclosed that the contraband material recovered from the car belonged to the petitioner and was being transported to Sheikhupura at petitioner's asking.
4. During investigation, the police collected the following set of evidence against the petitioner: ---
(i) Statement of Muhammad Siddique (driver) under section 161, Cr.P.C. Dated 14-4-1995 further affirmed by his statement under section 164, Cr.P.C. Dated 27-4-1995 that .The Suzuki Car bearing No.MNN 1797 belonged to the petitioner and Heroin and Charas was being transported to Sheikhupura at petitioner's instance;
(ii) Statement of Abdul Sattar (constable) under section 161, Cr.P.C. Dated 14-4-1995 further affirmed by his statement under section 164, Cr.P.C. Dated 27-4-1995 (who is admittedly a Gun Man of the petitioner) corroborating the statement of Muhammad Siddique driver;
(iii) Statements of Abdul Hameed (mechanic) under section 161, Cr.P.C. Dated 24-4-1995 and under' section 164, Cr.P.C. Dated 24-4-1995 that the Suzuki Car bearing No.MNN 1797 belonged to the petitioner and was sent to him for repair;
(iv) Statements of Muhammad Latif (painter) under section 161, Cr.P.C. And under section 164, Cr.P.C. Both dated 24-4-1995 that he painted Suzuki Car bearing No.MNN 1797 and that the same belonged to the petitioner;
(v) Statement of Mubarik Ali (constable) under section 161, Cr.P.C. And under section 164, Cr.P.C.
Both dated 27-4-1995 that the Suzuki Car No.1797 is owned by the petitioner;
(vi) Statements of Roshan Ali (driver of the petitioner) under section 161, Cr.P.C. And under section 164, Cr.P.C. Both dated 24-4-1995 corroborating the statement of Mubarik Ali qua ownership of the Suzuki car in question;
(vii) Statements of Masood Ahmad under section 161, Cr.P.C. Dated 2-5-1995 and under section 164, Cr.P.C. Both dated 4-5-1995 that in his presence the petitioner asked Abdul Sattar (Gun Man) to go in uniform with Siddique (driver) in Suzuki Car No.MNN 1797 and the same day they were arrested and heroin was recovered from the said car;
(viii) Statements of Khuda Bakhsh under sections 161 and 164, Cr.P.C. Both dated 20-6-1995 that a Suzuki Car bearing No.MNP 7340 (the original number of the car which was used for the alleged offence) was purchased by the petitioner through open transfer letter in his presence;
(ix) Statements of Muhammad Nawaz under sections 161 and 164, Cr.P.C. Both dated 20-6-1995 corroborating the statement of Khuda Bakhsh about the purchase of the car;
(x) Statement of lkramullah Bandial F.I.O. Under section 161, Cr.P.C. Dated 14-5-1995 wherein Muhammad Akram the original owner of the recovered car in the instant case correctly identified the car and its chassis No. i.e. 665799;
(xi) Statement of Muhammad Akram under section 161, Cr.P.C. That the said Suzuki Car bearing Chassis No.665799 and Registration No.7340 was stolen in the year 1992 and a case was registered qua the said theft vide F.I.R. No.317/92 at Police Station Basti Malook, Multan; and
(xii) Statement of Muhammad Latif under section 161, Cr.P.C. To the effect that he is the owner in possession of Suzuki Car bearing Chassis No.620092 Registration No.7340 MNP and the Registration Number written (1797 MNN) on the Suzuki car recovered in the instant case, was fake.
5. Raja Muhammad Anwar, Advocate, the learned counsel for the petitioner has made following submissions to canvass his prayer for bail:-
(i) That the petitioner has been roped in for mala fide considerations as certain persons in the Narcotic Control Board were against him;
(ii) That the statements of co-accused namely, Muhammad Siddique and Abdul Sattar cannot be used against the petitioner;
(iii) That the statements of Abdul Sattar, Gun Man; and Muhammad Siddique do not inspire confidence. In their statements recorded under section 164, Cr.P.C. They stated that two Pathans also accompanied them in the Suzuki car but nothing is known about their whereabouts. This missing link in the prosecution story makes the story doubtful;
(iv) That Mubarik Ali F.C., Muhammad Latif, Masood Ahmad, Master Muhammad Akram, Abdul Hameed and Roshan Din vide their affidavits dated 21-6-1995 resiled from their earlier statements and deposed before the Court of Sessions that their earlier statements were 'given under duress and that the petitioner did not indulge in the drug trafficking;
(v) That after the affidavits of the afore-referred prosecution witnesses, there is nothing on record to corroborate the statements of Muhammad Siddique and Abdul Sattar co-accused;
(vi) That the so-called statements of Abdul Sattar and Muhammad Siddique under section 164, Cr.P.C. Recorded after more than ten days of the occurrence in question do not inspire confidence.
Reliance was placed on PLD 1977 Kar. 760 (Abdul Majeed v. The State) and 1982 SCM R 321 (The State v. Asfandyar Wali and 2 others); and
(vii) That the prosecution story is not free, from doubt and the benefit of doubt has to be extended to an accused even at a bail stage. He relied on PLD 1995 SC 34 (Tariq Bashir v. The State).
6. Mr. Masood Ahmad Mirza, the learned Deputy Attorney-General for Pakistan appeared Pakistan Narcotics Control Board and opposed the prayer for bail. He submitted that the prosecution story consists of natural witnesses i.e. Muhammad Siddique who was driving the car and Abdul Sattar, an official Gun Man of the petitioner and that the contraband material was recovered from the car in question. He also referred to the statements of various witnesses recorded under sections 161 and 164, Cr.P.C. To point out that a stolen car was purchased by the petitioner for using in drug trafficking; that the petitioner asked his Gun Man to accompany Muhammad Siddique driver in uniform and that there is no reason why the petitioner should be falsely implicated in the case in question. He referred to section 8 of the Control of Narcotic Substances Ordinance, 1995 to highlight the fact that it is an offence to "(a) organize, manage, traffic in, or finance the trafficking of, narcotic drugs, psychotropic substances or controlled substances". It was further contended by him that as the heroin exceeded 100 grams, the maximum sentence which can be awarded under section 8 ibid is death or imprisonment for life which falls within the prohibitory clause of section 497 of the Cr.P.C. Lastly it was submitted that petitioner has a criminal record and more than 20 cases stand registered against him in different police stations under various laws.
7. We have heard the learned counsel for the parties and have also gone through the record with the assistance of the learned Deputy Attorney-General for Pakistan.
8. The petitioner enjoys an exalted position in the country. He is a Member of National Assembly and is also a Member of the Pakistan Narcotics Control Board. There is prima facie no reason why should he be falsely implicated. Nothing was said to elaborate the argument that the case was product of mala fides. In fact even in the bail petition no reference has been made to the alleged enmity with any member of the P.N.C.B.
9. Neither before the Court of Sessions nor in the body of the petition, the petitioner has disowned his relationship with Muhammad Siddique co---accused who was driving the Suzuki car in question and Abdul Sattar, his official Gun Man. Muhammad Siddique and Abdul Sattar were apprehended at the spot, heroin weighing 35 kilograms and Charas weighing 30 kilograms was recovered from them and in their statements recorded under section 161, Cr.P.C. Immediately after their arrest (and subsequently under section 164, Cr.P.C.) they not only confessed their guilt but categorically implicated the petitioner to have asked them to transport the contraband material in question. Such statements are admissible in evidence under section 43 of the Qanun-e--Shahadat Order, 1984. The car used for the alleged offence bore an M.N.A. Plate on it and there is prima facie evidence on record that the said car was purchased by the petitioner and the same was a stolen one and a fake registration number was being used.
10. The learned counsel for the petitioner made reference to affidavits dated 21-6-1995 sworn by Muhammad Latif, Masood Ahmad, Master Muhammad Akram, Abdul Hameed and Roshan Din to contend that their earlier statements recorded under sections 161 and 164, Cr.P.G. Were made under duress. The affidavits in question have been perused and we find that these affidavits were recorded after almost two months of their statements under section 164, Cr.P.C. During this period, these witnesses were neither under arrest nor any restraint. This belated sworning of affidavits, prima facie, creates an impression that the same were procured with a view to suborn the evidence on record. Mere filing of affidavits would not make a case of "further inquiry" unless it is established that the police investigation is mala fide. This tendency was taken note of by the Honourable Supreme, Court in a case reported in PLD 1990 SC 83 (Mst. Bashiran Bibi v. Nisar Ahmad Khan) and the bail granted on the basis of affidavits was cancelled. In this case, at page 84, it was observed: -- "Criminal Procedure Code (V of 1898)--- S.497(2)---Further inquiry---Mere filing of affidavits by certain Advocates would not attract the expression `further inquiry' nor would it amount to two versions---Evidentiary value of suchP;evidence should be left to be determined by trial Court."
In yet another judgment 1983 SCM R 15 (Sanaullah and 3 others v. The State) bail was refused by the August Supreme Court although the only witness cited in the F.I.R. Had given an affidavit that he had not seen the occurrence and in this case it was observed as under:--- "Criminal Procedure Code (V of 1898)--- ----Ss. 497 & 498---Bail---Contention that only witness mentioned in F.I.R. Having filed an affidavit stating to have not seen the occurrence, petitioner entitled to be released on bail---Held: Even if such witness be assumed to have not seen occurrence, complainant being also a witness would support prosecution case and High Court in circumstances justified in dismissing bail application."
11. Instances are not lacking where witnesses, who were witnesses of truth, resiled from their earlier statements. The value of their subsequent or earlier statements, in such eventualities, is left to be determined by the learned I trial Court. While deciding a bail petition it would amount to deeper appreciation of evidence to enter into the exercise of enquiring into the veracity of the statements referred to above. Drug trafficking in contemporary age has assumed a serious dimentions. The incidence of this crime is on the increase and the human "ingenuity" have evolved new methods to frustrate the efforts of the law enforcing agencies as the drug trafficking promises easy and huge money. Assistance of influential individuals is solicited by manufacturers and other drug pushers for the sale of the contraband articles. Unbridled by the qualm of conscience and motivated by the lust for black money they fall easy prey and become part of the criminal transaction of smuggling and trafficking of contraband drugs. Restrained by their social status and for consideration of personal safely these individuals pursue their objectives through carriers and confine their ambit of activity to planning and organisation. Generally carriers were arrested and the manufacturers and the real pushers of drugs who masterminded the criminal activities used to get scot free. It was perhaps with a view to undo this anomaly that a specific provision has been enacted in the Control of Narcotics Substances Ordinance, 1995 which reads as under: -- Section 8 "Prohibition on trafficking or financing the trafficking of narcotics drugs etc: --No one shall--
(1) organize, manage, traffic in, or finance the trafficking of, narcotic drug psychotropic substances or controlled substances; or
(b) use violence or arms for committing or attempt to commit an offence punishable under this Ordinance."
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12. This Court cannot help taking judicial notice of the menace of drug abuse which has surfaced in the last two decades. According to an estimate there are more than three million, drug addicts in this country and the gravity of the problem beyond the frontiers is not easy to fathom. The drug barrons in fact are "Neo-merchants" of death who unconcerned of the consequences of their ignoble business, are responsible for maiming millions of bright individuals, for destroying the peace of many a families and for organising a Mafia which has destroyed the tranquality of many a cities the world over. If this country has not to become another Columbia the people engaged in this heinous crime have to be brought to justice. Any lawful effort made to boost up the international crusade against the menace of drug abuse merits recognition and commendation.
13. For what has been discussed above, the statements of witnesses and recovery of contraband material from petitioner's car do prima facie connect the petitioner with the commission of an offence which falls within the prohibitory clause of section 497, Cr.P.C. There is no merit in this petition which is hereby dismissed.