Having been involved in case registered vide F.I.R. No,8, dated 15-12-1999 under section 9 C.N.S.A. At Police Station, Anti-Narcotic Force, Haripur the accused-petitioner applied for his release on bail in the Court of learned Sessions Judge, Haripur but the same was rejected vide order, dated 25-2- 2000. The petitioner has now moved this Court for his release on bail.
2. On 15-12-1999 Syed Rahat Ali Shah, Inspector, Anti-Naroctic Force, Haripur (complainant) on spy information with regard to the smuggling of huge quantity of heroin, alongwith other raiding party including Captain Naeemullah Khan had laid picket on Chappar Road. In the meantime motor-car No,HR-75 appeared on the scene coming from Phulra side. The said motor-car was being driven by Ejaz Khan, the petitioner. On the front seat another person, namely, Asmatullah Khan son of Wali Jan was seated. The said motor car was stopped by the officials of A.N.F., the motor car was searched and from the front seat under the feet of Asmatullah a black colour shopping bag containing heroin packed in 15 packets was recovered. On weighment the heroin was found to be 15 Kgs. Out of 15 packets one gram from each packet was separated and sent for Chemical Analysis. Asmatullah Khan and accused-petitioner (Ejaz Khan) were arrested.
3. Mr. Saeed Akhtar Khan, Advocate, the learned counsel representing the accused-petitioner argued that the recovery of contraband heroin was effected from Asmatullah Khan as the bag was lying under his feet as he was sitting on front seat of the motor car. This fact gets supports from the statements of Fida Muhammad and Sultan Quresh officials of Anti-Narcotics Staff whose statement under section 161, Cr.P.C. Were recorded in which they stated that the contraband heroin was recovered from bag which was lying under the feet of Asmatullah Khan.
4. It was further argued that Asmatullah Khan has confessed his guilt. In his confessional statement he stated that he had taken lift from Ejaz Khan who was coming on the same road by driving the abovementioned vehicle and he (Ejaz Khan) had no knowledge that he was carrying heroin with him. Asmatullah Khan later on submitted affidavit also confirming the fact that Ejaz Khan had no knowledge.
5. It was also argued by the learned counsel for the petitioner that the accused-petitioner is not a previous convict. If at all he has been involved in any case previously, his involvement was merely based on the statement of co-accused recorded by police during investigation which is not admissible at all. The accused is presumed to be innocent till he is proved guilty beyond reasonable doubt.
6. On the other hand, Mr. Tariq Khan Kakar, the learned Special Prosecutor for Anti-Narcotic Force, while repelling the arguments of the learned counsel for the petitioner opposed the grant of bail.
He argued that story narrated by Asmatullah Khan that he took lift in the motor-car of accused- petitioner is false and incorrect. He argued that it is on record that motor-car No,HR-75 was borrowed from Abdur Rashid by accused-petitioner. The said Abdur Rashid in his statement recorded under section 161, Cr.P.C. Stated that accused-petitioner Ejaz and Asmatullah both had come to him to borrow his motor-car which was given by him to Ejaz. But in his (Abdur Rashid) statement recorded under section 164, Cr.P.C. He stated that the motor-car was borrowed by accused-petitioner (Ejaz) from him. Asmatullah is employee of accused-petitioner Ejaz in his factory as is clear from the confessional statement of accused Asmatullah. No doubt Ejaz the petitioner was driving the car at the time of occurrence but he was Master of Asmatullah. So prima facie accused-petitioner is involved in the commission of offence.
7. It was also argued that accused-petitioner previously too was involved in case registered vide F.I.R. No,245 on 29-12-1993 in Police Station Pindi Ghaip, District Attock under section 3/4, P.O. In the said case 50 Kgs. Of Charas was recovered from accused Shaukat Hayat who had named the accused-petitioner and one Liaqat being his associates.
8. The quantity of recovered contraband heroin exceeds 10 Kgs. And the punishment provided in section 9-C is death, therefore, the accused-petitioner is not entitled to grant of bail.
9. I have heard the learned counsel for the parties and perused the record.
10. So far as first argument of the learned counsel for the petitioner that Contraband heroin was recovered from Asmatullah co-accused and the accused-petitioner had nothing to do with the same is concerned, this argument has no force at all, firstly, because the contraband heroin was recovered from motor-car No,HR-75 which was being driven by accused-petitioner at the time of occurrence, secondly, the fact that accused-petitioner had borrowed the car from Abdur Rashid and that he was driving the same at the time of occurrence has not been denied by the petitioner or his counsel at Bar; thirdly, Asmatullah co-accused in his confessional statement admitted that he is employee of accused-petitioner in his factory. So prima facie accused-petitioner is connected with the commission of offence; fourthly, the mere fact that narcotic drug was recovered from the shopping bag lying in the feet of the co-accused who was at the relevant time sitting on the front seat would not create any extenuating circumstance for the petitioner in the light of offence under which the accused are arraigned. Reliance is placed on Mst. Naheed Kausar and 2 others v. The State 1998 PCr.LJ 570.
11. The second argument of the learned counsel that Asmatullah has confessed his guilt and in his confessional statement he has exonerated the petitioner also has no force. The legality and propriety of the confessional statement cannot be scrutinized at bail stage and it would be seen by the trial Court as under which circumstance Asmatullah co-accused who is a petty labourer under the accused-petitioner was made to confess his guilt.
12. The third argument of the learned counsel that the accused-petitioner is not a previous convict, hence bail cannot be withheld. This argument equally has no force. The accused-petitioner was previously involved in case registered vide F.I.R. No,245 on 29-12-1993 in Police Station Pindi Ghaip District Attock under section 3/4, P.O. In the said case 50 Kgs. Of Charas was recovered from Shaukat Hayat who had named the accused-petitioner and one Liaqat being his associates. His conduct and involvement in the previous case also shows that accused-petitioner prima facie has been dealing with physiographic drugs including Charas and heroin. No doubt registration and pendency of cases against accused is no bar for grant of bail provided a case for bail is made,out but in this case 15 Kgs. Of heroin was recovered from the car which was being driven by the accused-petitioner. His previous conduct is a relevant factor in the matter of narcotic specially when the offence with which he has been charged is punishable with death or imprisonment for life in case of conviction. Reliance is placed on Sufi Muhammad Iqbal and another v. The State 1975 PCr.LJ 628.
13. Section 51(1) of the Control of Narcotic Substances Act, 1997 placed embargo on the release of petitioner on bail. The said embargo is fully attracted in the case in hand. 15 Kgs. Of heroin was recovered in this case. The report of F.S.L. Is in positive. The offence with which the accused- petitioner is charged is punishable with death. His application straightaway deserves dismissal.
Reliance is placed on Bunair Gul v. State 1999 PCr.LJ 728 wherein it was held:-- "The embargo is fully attracted in this case and the bail application is not maintainable at all as in view of the material on record there exist reasonable grounds for believing that the petitioner has been guilty of an offence punishable with death under section 9(c) of the Control of Narcotic Substances Act, 1997. It is scarcely necessary to mention that the embargo being extremely stringent can be pressed into service only when the person charged with an offence punishable with death under the Control of Narcotic Substances Act, 1997 is prima facie and reasonably connected with the crime.
In the result the bail application is dismissed."
The bail petition being meritless is dismissed. The prosecution is directed to submit challan within 15 days and the trial Court is directed to conclude the trial within a period of six months positively.
The office is directed to send copy of this order to Director, Anti-Narcotic Force, Peshawar for compliance.