JUDGMENT AGHA RAFIQ AHMAD KHAN, J.- This application under Sections 497(5) & 498, Cr.P.C., for cancellation of to respondent Khalid Khan by Mr. Syed Ali Ashraf Shah, I-Additional Sessions Judge. Hudood, Karachi West, has been Hied by State through Special Public Prosecutor, Pakistan Narcotics Control Board, Karachi.
2. Brief facts leading to this application are that on 20.1.1994 at about 8.00 A.M. Respondent Khalid Khan while driving Toyota Corolla Car (white colour) No.W-1807. Was stopped by the Staff of P.N.C.B.
On the road, near (in Bai Chowk. Maripur Road, Karachi, after receiving spy information, that he was trafficking heroin in huge quantity. On his pointation the digg of the said car was checked in presence of mashirs, namely, Shoukat Ali son of Syed Liaquat Ali and H.C. Naim Khan. On search 3 bags-were found lying in the diggy with the following details:-
(1) "Blue coloured Nyloon Bag marked as Blue Bagon. Which contained I6 packets in Plastic bags containing Heroin marked as 777 (Itifaq).
(2) Bag Khaki in colour marked as Sin Rico which contain 12 cloth packets which were wrapped with white cloth and marked as 777 (Itifaq) those also contained Heroin.
(3) Bag Brown in colour marked as Turbo word containing 12 packets of Heroin wrapped with white colour cloth in a plastic marked as Itifaq 111 and the above packets were duly wrapped with, solution paper tap. In all 40 packets duly recovered were weighed and it was 40 KGs.".
3. After that from each packet of heroin 10 grams heroin was secured in shape of sample. This sample and the other .Heroin powder were sealed in presence of mashirs and such mushirnama was prepared. After usual investigation the respondent was sent up for the trial. In the Trial Court bail Application was behalf of the respondent and the same was heared by Syed Ali Ashraf Sl additional Sessions Judge. Hudood. Karachi West, who vide his order dated 2J.6.I994 granted bail to the respondent in the sum of Rs. 4,00,000/- (Rupees for lacs).
4. Application under Section 497 (5), Cr.P.C., was moved before the Trial Judge for cancellation of bail by Special Public Prosecutor on behalf of State, but the same was rejected by the same Judge, vide his order dated 21.5.1995, hence the present application has been moved in this Court.
5. Mr. Moula Bux Bhatti, learned Special Public Prosecutor, has contended that the offence for which the respondent is sent up is punishable with death and there is strong evidence with the prosecution to connect the respondent with this crime. The order granting bail to the respondent/accused is capricious and illegal. According to him the respondent is a dangerous person involved in trafficking of 40 Kgs. Heroin powder. The market value of this drug is about rupees 40 millions. Inspector Ghulam Muhammad who had partly investigated this case has been killed by the drug-Taphiae and the present respondent is accused in that case Mr. Bhatti had also pointed out that the respondent had not attended this Court in spite of directions. He has also failed to attend the Trial Court without any intimation on 6.8.1995 and non-bailable warrants were issued against him. On this ground also his bail is liable to be cancelled.
6. In support of his arguments, learned counsel for the State has relied upon the cases of Anwar Khattak v. The State, reported in 199Q P.Cr.L.J. 38, Muhammad Hussan v. Muhammad Khun and others, reported in 198l P.Cr.L.J. 1077, Bashir Ahmad v. Mirza Muhammad Yaqoob and 10 others, reported in 1991 MLD 579, and Muhammad Akram Butlak v. Ijaz Ahmad and another, reported in PLD 1976 Lahore 591.
7. Mr. Ziauddin Nasir, learned counsel for respondent has defended the bail order and has argued that this cancellation application is not maintainable as it has been filed after the delay of about 9 months. He has further argued that provisions of Section 103, Cr.P.C, was not complied with by the I.O. As at the time of search he had not called two respectable persons of the locality to act as mashirs, In support of his case, he has relied upon the cases of Imdad Hussan and others v. The State, reported, in 1985 P.Cr.L.J. 1353. Muhammad Yameen and others v. The State, reported in 1987 P.Cr.L.J. 2239, Shoukat Hussan v. Zulfiqar Ahmed, SIIO P.S. Mosang and 2 others, reported in 1983 P.Cr.L.J. 676, Muhammad Shaft v. The Stale, reported in PLD 1987 Federal Shariat Court I6 and Malik*Muhammad Saleem v. The State, reported in PLD 1988 Karachi 485.
8. I have given full consideration to the arguments advanced by the learned counsel- for the parties and gone through the material available on record. Firstly it would be relevant to mention here that the respondent after service in this Court has all along remained absent in spite of directions issued by this Court. He has also remained absent without any intimation from the Trial Court on the date of hearing viz. 6.8.1995 and non-bailable warrants have been issued against him.
The respondent has misused the concession of by the Trial Court and has also disobeyed the directions issued by this Court by riot attending the hearings in spite of furnishing surety. On this account also he is not entitled for bail and the same can be cancelled.
9. Now I will take the case on merits. It will be pertinent to reproduce the operating part of the order of the learned Trial Judge, granting bail, which reads under:- " I have given my considered view to the arguments advanced before me and I have gone through the entire police papers and also law cited by the learned defence counsel. I find that in this case the prosecution story is that the heroin 40 kilograms was recovered from the possession of the accused while he was travelling in a car, whereas the Contention of the defence counsel is that the applicant/accused was not travelling in the car but the case has been foisted upon him. The case papers further show that in this case all the witnesses are the police men there is also no any eyewitness/ recovery mashir from the public to corroborate the version of the prosecution charge though the place of occurrence is a public place being railway cross Gulbai Manghopir Road where from the public witness could be obtained but the Investigating Agency has not taken any trouble to obtain the public witness from the place of occurrence. Apart from this I find that there is also another case against the applicant/accused under FIR No. 1/1994 in which the dale of offence is 25.1.1994 whereas the applicant/accused was already in police custody from 20.1.1994 to 3.2.1994 as per remand order passed by the learned Magistrate dated 27.1.1994 which is very well available or record. These factors show that the accused was already in police custody from 20.1.1994 to 3.2.1994 and how second case under FIR No. 1/1994 was registered against him on 25.1.1994. All these factors need further inquiry to the guilt of the accused. Accordingly I find much legal force in the arguments advanced before me by the learned defence counsel Mr. Khanzada and the law cited by him is very much relevant to this case. Consequently the applicant/accused Khalid Khan son of Haji Shah Muhammad is admitted to bail on furnishing surety it? The sum of Rs. 4,0, 000/- and P.R.
Bond in the like amount."
10. From the above reasons of the learned Trial Judge for grant of bail, it appears that he was bent upon to enlarge the respondent on bail and while granting the same he has gone to the extent of creating false grounds, It is incorrectly stated by the Trial Judge that there was no private mashir of recovery in the case. The mashirnama as well as challan show that apart from H.C. Naim Khan, there is an independent private mashir namely, Syed Shoukat Ali. The impugned order further shows that the Trial Judge was very much impressed from the arguments of the defence counsel that the respondent was not travelling in the car and that 40 kilograms powder of heroin has been foisted upon him. He has believed this oral contention of the advocate without any material on record. The Trial Judge has also mentioned in his order-that since there is another case, being F.I.R.
No.1 of 1994 against the respondent in which the date of the offence is shown as 25.1.1994. Whereas the accused was already in custody in this case, therefore, the present case requires further inquiry. Mr. Moula Bux Bhatti, Special Public Prosecutor has informed that it is wrongly mentioned in this order and the actual position is that arrest of the respondent is shown on 25.1.1994 in F.I.R. No. 1/1994 which was already registered. Even otherwise that case has got nothing to do with this case at this stage.
11. Lam not impressed with the arguments advanced by learned counsel for the respondent. The application for cancellation of bail under Section 497(5), Cr.P.C, can be moved at any time as there is no limitation period for the same. But in the present case the respondent was granted bail on 29.6.1994. The application for cancellation was moved on behalf of State before the Trial Court which was subsequently rejected on 21.2.1995. The State has thereafter approached this Court on 14.3.1995, therefore, there is no inordinate delay on the part of the prosecution in moving the application for cancellation of bail. As far as the provisions of Section 103, Cr.P.C, are concerned, it would be useful to reproduce this Section which reads as under:- " S. 103.- (1) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do, (2)----------- (3)----------- (4)----------- (5)-----------
12. I have gone through the reported cases relied on by the respondent's counsel. All the cases are totally distinguishable from the facts of the present case and therefore, arc not applicable. The case reported in 1985 P.Cr.L.J. 1353, relates to recovery of heroin from in i.e the house and the case was non-cognizable. The cases reported in 1987 P.Cr.L.J. 2239. And Ph.D 1987 federal Shariat Court I6 are not on bail but are the judgments given in appeals before the Shariat Court regarding non- cognizable cases. Other reported cases are also regarding search made in non- cognizable cases, In the present case the respondent has been challaned under Article 3 of the Prohibition (enforcement of Hadd) Order. 1979. According to Article 16(1) of the above Order an offence punishable under. Article 3 is cognizable. In case of Dost Muhammad (PLD 1975 S.C. 607). It has been held that "requirement of Section 103, Cr.P.C, is not absolute in the sense that failure to comply with h will make the search illegal." By not calling two persons of the locality would not make search illegal in the circumstances of the present case. No adverse presumption can be drawn unless Investigation Officer is given chance for examination in Court to explain his position.
13. In the present case the respondent was stopped by driving the car and on his pointation and in presence of witnesses the diggy was opened and 40 kilograms heroin powder was allegedly recovered, therefore, he was challaned under Articles 3 and 4 of the Prohibition (Enforcement of Hadd) Order, 1979. According to Article 16(1) of the above Order an offence punishable under Article 3 is cognizable therefore as f have areads staled that the above-mentioned cases are not at all relevant in the present bail application. No ground of enmity with the raiding party or private witness was alleged during the arguments before the Trial Court. There is nothing on record to suggest that the respondent might have been falsely implicated in the present case. Prima facie, there is strong evidence against the respondent that such huge quantity of heroin powder has been recovered from the possession of the respondent, and its market value is stated to be rupees 40 millions. The ease was fresh one and no witness was yet examined in the Trial Court, but the respondent was granted bail on flimsy grounds and that also in the sum of Rs. 4,00,000/- (Rupees for lacs) only. Trafficking in Narcotics is a crime against the humanity but I am sorry to say that the Trial Judge has encouraged this by granting bail in the above-mentioned circumstances. Such judicial officers create bad name for judiciary, I would. Therefore, request the I honourable Chief Justice to transfer this case from his Court and also recommend to lake disciplinary action against the Trial Judge. For the above reasons. I am satisfied that the respondent had no case on merits for grant of bail. The Trial Court has misused its discretion while allowing the bail to the respondent.
Accordingly the present criminal miscellaneous application is accepted and the to the respondent by the-Trial Court is hereby cancelled. Even today he is not present in Court. The Trial Court is directed to make efforts according to law for arrest of the respondent and also take action against his surety. Needless to say that the observations made in this case are tentative in nature and will not influence the mind of the Trial Judge at the time of hearing of main case.