1. ' By this order we dispose of a suo motu revision seeking cancellation of bail of accused Danish Ali and Muhammad Yousuf, granted to them by the Sessions Judge, Karachi (West), on 1-6-1996. The facts relevant for this order, in short, are that during the routine scrutiny of bail orders passed by the learned Sessions Judge, Karachi (West), in the month of June 1998 a bail order in Special Case No,59 of 1997 State v. Muhammad Yousuf, under section 9 of Control of Naroctic Substances Act, 1997 of Police Station Karachi Port Trust, Karachi was examined by the Member Inspection Team of the High Court. The M.I.T. Was of the view that learned Sessions Judge had committed gross error in granting bail to the accused firstly because this case was a case to be tried by Special Judge Narcotics under Control of Narcotic Substances Act, 4997, while the leaned Judge treated it as a case under Article 3/4, Prohibition (Enforcement of Hadd) Order, 1979, secondly the sound principles enunciated by the superior Courts and well-established principles laid down under provisions of section 497, Cr.P.C., were ignored. On such note the learned Chief Justice, directed that this matter be examined on judicial side and an explanation of the learned Presiding Judge may also be obtained with regard to passing of such slipshod order in a case in which the accused was allegedly arrested on spot with contraband Charas of 60 Kgs. While the case had yet to proceed. The learned Chief Justice ordered the examination of the matter on judicial side and therefore, the matter came before this Bench. The accused was issued a notice that this Sua Moto Revision was being treated as a motion for cancellation of the bail order. The accused therefore, through their counsel have contested this matter.
2. ' We heard the learned counsel for the State today who has fully supported the view of the. Member Inspection Team. And has contended that he did not support the order dated 1-6-1998 passed by the learned Sessions Judge, Karachi, (West) and he was of the view that the order of the learned Sessions Judge was not legally sound. The learned counsel for the accused, however, vehemently opposed the move for the cancellation of the bail and argued that after the action for cancellation of bail was moved by the M.I.T.. One of the Mashirs of the prosecution case; namely Mumtaz Khan was examined. He has not supported the prosecution and he was declared hostile and cross- examined by the prosecution. Further, contention of the learned counsel for the accused was that when the case had made progress, the bail should not be cancelled and in support of this contention the learned counsel for the accused has relied on the case of Akmal Masih and others v.
3. Salamat Masih and 4 others (1988 SCM R p.918). In this case Supreme Court had declined to recall the ing bail with the observation that the trial Court will be at liberty to cancel bail if incriminating evidence was brought against any of them on record. In the reported case bail was allowed to the applicants by Additional Sessions Judge, Rawalpindi.. The complainant approached a learned Single Judge of Lahore High Court for cancellation of the said bail granted by Additional. Sessions Judge, but his application was rejected by learned Single Judge of The Lahore High Court, Rawalpindi. Against such order of the learned Single Judge, criminal petitions were filed before the Hon'ble Supreme Court, wherein it was argued for cancellation of the bail granted to the applicants in that case. The facts of-that case were to the effect that Salamat Masih and 5 others were charged under sections 302, 307, 148 and 149, P.P.C. In that occurrence Aslam Masih had succumbed to his injuries while three persons from complainant side Akmal Masih, Mairaj Masih and Khoshi Masih, had received injuries at the hands of the other party. These were cross- complaints, and the other case was for an offence under sections 307, 325 and 149, P.P.C.
4. ' While deciding the motion the Hon'ble Supreme Court on hearing from the learned counsel for the parties that the challan in this case had been submitted in the Court and the trial was to start shortly, declined to recall the order of the bail of the four respondents and observed further that the learned trial Court, however, would be at liberty to cancel the bail of the respondents, if on recording evidence incriminating material was brought against any of them. In the present case, the facts and circumstances of the case appear to be quite different and distinct. On 1-9-1997 a case was registered that police party while patrolling, on a spy information that a person was selling Charas at the anchored ships in Karachi Harbour. And that he had taken the Charas to the Harbour in a Suzuki High-roof, arranged a Nakabandi. At 10-00 p.m., they found a Suzuki vehicle of the description given to the police. The Suzuki driver on seeing police managed to escape while other occupant of the Suzuki sitting with the driver was apprehended. On search three suit-cases were found in the vehicle which contained in all 60 Kgs. Of Charas and the accused who was occupant of the Suzuki at that time was arrested. He was found to be the applicant Muhammad Yousuf. The police challaned the case on 29-9-1997 and altered the section of the offence to be read as one under section 9 of the Control of Narcotic Substances Act, 1997. On 1-6-1998 bail application of accused Muhammad Yousuf as well as co-accused Danish Ali was allowed by the Sessions Judge while it was considered to be a case under Article 3/4,14 Prohibition (Enforcement of Hadd) Order, 1979. 'It was held that the Suzuki vehicle was not a public place and, therefore, the recovery of the Charas from the vehicle was not a cognizable offence. It was further observed that the Chemical Analyser's Report had not yet come on the record. In fact the Chemical' Analyser had already given the opinion that the material which was sent to him was Charas. The learned Judge, however, held that it was a case of further inquiry.
5. ' We have considered the Arguments of the learned counsel for the accused and we have no hesitation in holding that the order of the learned Sessions Judge is, in violation of law and inasmuch as section 77 of the Control of Narcotic Substances Act, 1997, provides that provisions of this Act shall have effect notwithstanding anything contained in any other law for the time being in force. Similarly section 74, also provided that if an offence punishable under the Act is also an offence punishable under any other law for the time being in force, nothing in that law shall prevent the offender from being tried under the Act (Control of Narcotic Substances Act, 1997). The purpose of enactment of Control of Narcotic Substances Act, 1997, appears to strengthen measures for controlling the menace of use and sale of the narcotic substances in the country, and therefore, the punishments have been enhanced, and many provisions have been made so that crime in respect of the narcotic substances should be discouraged and thus minimised.
6. Provisions of section 9(c) of the said Act, provide punishment of death for the offence in question and the grant of bail in such a case by the learned Sessions Judge is clearly misapplication of law on the point, and such order should not be allowed to remain on record. Under these circumstances we allow this suo motu revision and order c that the bail of accused Muhammad Yousuf be cancelled while in case of co-accused Danish Ali, against, whom evidence is different, it may be re-considered by the learned Sessions Judge and a fresh order be passed granting, or refusing the hail to him with justifying reasons. Such order may he passed within a period of two weeks from receiving the copy of this order. Till then accused Danish Ali may remain on the same bail. The learned Sessions Judge/Special Judge (A.N.S.), shall pass order independent of the observations made by us in this order as the same' were for the purpose of deciding this , suo mote Criminal revision for cancellation of bail only.
7. ' As regards explanation of the leaned, Sessions Judge. The same may be placed before the learned Chief Justice for necessary orders on administrative grounds.
8. ' Accused Muhammad Yousuf son of Abbas Rehman is present. He is taken into custody. His custody is handed over to the Nazir, who may deal with him according to law. He should be sent to.
9. Central Jail, Karachi.