1. ' These two bail applications are being disposed of by this common 'order as the facts and case- law involved are same.
2. ' The facts in Criminal Bail Application No,789 of 1998 are that complainant Ghulam Shabir Kalo, Excise Inspector D.I.O. Camp Kandiaro registered F.I.R. That on 9-9-1997 on receipt of spy information through Abdul Hayee Dbarnraho D.I.O. Sukkur, he came to Kandiaro with his subordinate staff viz Lal Btu Dahri, Abdul Ghani Ghulam Mustafa papar,. Allahwarayo Khaskheli and Mubarak Chandio vide movement entry No, dated 9-9-1997. For detection of crime. They reached the place of Wardat near Khadim Hussain Waziristan Petrol Pump on National Highway so as to check the Oil Tanker No,PRI1/1985 for which he received spy information that it was coming from Punjab..On arrival of the said tanker, EC 4a1 Bux signalled it to stop, the man sitting on driver seat was-made to come' down and after informing him about the Excise rules, they inquired his name.
3. He claimed to be Muhammad Asghar son of Noor Ahmed Awan resident of Atak. On his personal search national identity card, driving licence and Rs,2,000 cash were recovered. Thereafter, Excise Police searched driver cabin and from the dash board of the tanker they secured registration book which was in the name of Palwash Sajlad resident. Of Peshawar. It is alleged that EC Abdul Ghani Kalo went on the upper portion of the tanker and found two secret cavities which contained 4000 pieces of charas. 40 pieces were separated from the other contraband for chemical examination.
4. Charas was weighed by the complainant which was determined to be 4000 kilograms. It was kept in 99 small gunny bags and sealed on the spot. Mashirnama of arrest was prepared in presence of Mashirs and accused was arrested. After registration of police started investigation.
5. ' It is the case of the prosecution that during investigation Muhammad Asghar Awan, the culprit apprehended by the Excise Police on the spot, disclosed the name of the present accused/applicant that he was also involved in drug trafficking. On the basis of such statement the applicant was joined as accused in the case and was shown absconder in the charge-sheet alongwith accused Pakhpali Khan. Subsequently Rafaquat Ahmed was arrested. Bail application on his behalf was moved which was rejected by learned Special Judge, Control of Narcotic Substance, Naushahro Feroze on 7th day of October, 1998.
6. ' The facts of the prosecution case in Criminal. Bail Application No,138 of 1999 are as follows.
7. ' On 16-7-1998 Excise Inspector Muhammad Saleh Kerio, D.1.0. Camp, Uhauro lodged the report stating therein that on 16-7-1998 he along with his staff, namely. EC Rashid Ahmed Mahar, EC Niaz Hussain Chana, EC Allandino Lolai, EC Barkat Ali Shaikh, EC Noor Hussain Menton, EC Farman Ali Bullo, EC Muhammad Bux Solangi, EC Muhammad Hussain Khaskheli, EC Abdul flayee Shaikh and LD Ghulam Hussain Mahar held Nakabandi and started searching the vehicles near Kamoon Shaheed, border of Sindh Punjab. From Punjab side one truck No,PRC 8823 arrived and three persons were seen in the driver seat. EC Niaz Hussain Chana and EC Farman Ali Bullo were made Mashirs and brought down those three persons. Their names were inquired and they were Jamil Khan son of Abdul Aziz Awan resident of Lala Kile, Tehsil and District Peshawar who was the driver, the second person gave his name as Hasan Mir son of Baboo Nazis Awan resident of Peshawar and claimed to be the second driver of the truck and the third man gave his name as Farhad Khan son of Mahmood Awan resident of Peshawar and was, the cleaner of the truck. From personal search of driver Jamil Khan, his identity card, cash of Rs,560 were secured while nothing was secured from other two. From the dish board registration book and route permit in the name of Karim son of Noor Hakim resident of Khyder Agency now Karachi were recovered. In the cabin of truck, one secret drawer was noticed which contained 48 packets of opium in red cloth. Each bundle weighed 4 kgs.
8. And total weight of the drug was 192 kilograms. Two bundles of 4 kgs. Each were separately sealed for chemical analysis and remaining 184 packets were separately sealed. Mashirnama to that effect was prepared. The above accused on inquiry informed the complainant party that they supply the ;narcotics on behalf of Hasan Khan son of Haji Kachkol Khan resident of Charsada Road Peshawar and Hanif Khan resident of Molkiabad District Swabi who are partners in the spurious trade and the material recovered font them was to be supplied to Abdul Majid Chandio resident of near Ranipur and that previously also such contraband was delivered to him and that at that place their man named Hazrat Gul would be present for this purpose.
9. ' After usual investigation charge-sheet was submitted in the Court having jurisdiction showing accused Jameel Khan, Hasan Meer and Farhad Khan in custody and Haneef Gul, Hazrat Gul Haji Hasan Khan and the present applicant, Abdul Majid as absconders.
10. ' According to accused/applicant Abdul Majid about 7 days prior to the filing of the application Excise Police had visited his village for arresting him but applicant was away from his house and the police party informed the Nekmard of village that applicant has been shown, absconder in Narcotics case, and therefore, apprehending his arrest, he has approached this Court for pre- arrest bail.- ' Ws. Maqbool Aluned Awan and All Murad Abro contend that prima facie no tangible evidence is collected by the prosecution to connect the accused/applicants with the commission of the crime.
11. The only evidence so far collected against them is the statement of co-accused implicating applicant Rafaquat as involved in the drug trafficking while against applicant Abdul Majid is also statement of co-accused Jamil Khan, Hasan Mir and Farhad Khan that the opium recovered from them was to be delivered to this applicant. According to the learned counsel statement of accused before police implicating himself is not admissible in evidence. Abro submits that the jurisdiction of this Court is ousted under section 51 of the Control of Narcotic Substance Act to the extent of sections 496 and 497, Cr.P.C. But it is silent about section 498, Cr.P.C. It is urged that in the circumstances of the case, the applicants are entitled to benefit of bail. In support of their submissions, they have relied upon unreported decisions of the Honourable Supreme Court in Gulzaman v. State (Criminal Petition No,391-I of 1998), decided on 18-12-1998 and Saadullah v. State (Criminal' Petition for Leave to Appeal No,192 of 1998), decided on 21-12-1998.
12. ' Learned A. A.-G. And Dy. A.-G. As well as Special Public Prosecutor for Anti-Narcotic Force in view of the above facts and circumstances and case-law raise no objection to the grant of the bail to the accused/applicants.
13. ' It would be pertinent to refer to the facts of the case in Criminal Petition No,39.1 of 1998. There M/s. Champ Sports Sialkot exported 50 cartons of medicinal balls for Canada from Lahore through Airway Bill No .020-1218-1712 by Lufthansa Cargo. The said consignment was checked at Sharja Airport and 400 kilograms of hashish were found concealed in the medicinal balls. On receipt of the above information a raiding party was formed which subsequently visited the office of Hasnain Cargo Sialkot through which the consignment in question had been booked and arrested one Asif Javed who on interrogation disclosed that the consignment was owned by Gul Zaman, the petitioner before the Honourable Supreme Court. On the basis of above information case was registered and Gul Zarnan was arrested. Naseem Amin Butt, the owner of Champ Sports was also taken iwo custody. It was alleged that Asif Javed, Naseem Amin Butt, Mahmood Hasan Harvi and Gul Zaman were members of a gang engaged in the smuggling of narcotic. The bail applications of Gulzaman were dismissed by the trial Court and the Lahore High Court, and therefore, he approached the Supreme Court.
14. Criminal Petition No,192 of 1998 ' The facts in this case are that on 27-12-1997 a truck which was being driven' by Muhammad Ashraf was checked by Anti-Narcotics Force on receipt of spy information. On search 15 cloth bags each containing one kg. Of heroin powder were recovered. Besides the driver other two occupants of the truck, namely, Sabir Hussain and Muhammad Iqbal were also arrested. The arrested accused stated that heroin belonged to Saadullah petitioner and Goher Rehman who had delivered the same to them for its transportation to Karachi. In consequence Saadullah was arrested on 21-5- 1998. Bail application of Saadullah did not find favour with the High Court and ultimately he approached the Honourable Supreme Court. In both the above petitions their Lordships of the Supreme Court were pleased to allow the petitions and accused/applicants were granted bail.
15. ' In the case of Gulzarnan (Criminal Petition No,391-I of 1998) their Lordships have also dilated upon the reported cases State v. Qaim Ali Shah (1992 SCM R 2192) ' and Amir v. State (PLD 1972 SC 277) and Nadara v. Jamiat Khan and others (PLD 1968 SC 310). In the unreported decisions the Honourable Supreme Court has held that there is no cavil with the principle of law that despite the provision contained in section 51 of the Act, the Sessions Court and the High Court have the power to grant bail. This proposition of law we faithfully follow while disposing of the criminal bail applications in hand. This legal position has been lucidly and elaborately dealt with by the Honourable Supreme Court in cases. The State v. Syed Qaim All Shah (1992 SCM R 2192).
16. Chaudhry Shujaat Hussain v. State (1995 SCM R 1249), Tariq Bashir and 5 others v. The State (PLD 1995 SC 34) and Gul Zaman v. The State (Criminal Petition No,391 of 1998). The consensus of these authorities is that jurisdiction of this Court to grant bail in appropriate cases, is not completely ousted and the Court is not deprived of its powers to grant bail in appropriate cases keeping in view the peculiar facts and circumstances of that case if the ends of justice so demand.
17. ' Likewise in the case of Sardar Imdad Khan v. State (1996 PCr.LJ 273) it was held by a Division Bench of this Court that in cases covered by Suppression of Terrorist Activities (Special Courts) Act, the High Court has power to grant pre-arrest bail.
18. ' On the point of statement of accused before police, a recent decision of Lahore High Court reported as Gul Nawaz v. The State (1998 PCr.LJ 12) may be cited where it has been held:-- "To exemplify the confession of an accused person before the Police Officer of any rank about a case triable by the trial Court or by the Court of general jurisdiction is inadmissible in evidence in view of Article 38 of the Qanun-e-Shahadat Order, 1984."
19. ' We have gone through the material placed with the case. We have also considered the case-law referred to by the learned counsel for applicants/accused.
20. Admittedly the applicants were not present at the time the alleged recovery of narcotics was made from the other accused. Even thereafter nothing has been recovered from them. The only evidence against the applicants, as stated above, is in the shape of statement of co-accused recorded by Excise Police during investigation wherein they have implicated the present applicants having association in the trade of narcotics. Article 38 of Qanun-e-Shahadat Order clearly provides that confession of accused before a Police Officer is inadmissible, and therefore. The prosecution has failed to connect the applicants with the commission of the offence.
21. ' Learned Dy. A.-G., A.A.-G. And the Special Public Prosecutor for Anti-Narcotic Force keeping in view the facts, circumstances and case-law discussed above, raise no objection to the grant of the applications.
22. In the result the applications are allowed. Applicant Abdul Majid in Criminal Bail Application No,138 of 1999 shall furnish additional security of Rs,300,000 (three lacs) to the satisfaction of Additional Registrar of this Court within three weeks' time and thereafter, his interim bail will stand confirmed.
23. He is directed to appear before the trial Court to face the trial. Applicant Rafaqat Ahmed may be released on bail on furnishing security in the sum of Rs,500,000 (five lacs) and P.R. Bond in the like amount to the satisfaction of trial Court.