' As per F.I.R. No, 143, dated 30-4-2000 of Police Station Rangpura of District Sialkot, Muazzam Khan accused was found in possession of one kilogram of Charas and he was consequently arrested. He petitioned the Court of Session at Sialkot for his release on bail which petition, for the said purpose, was dismissed by a learned Additional Sessions Judge at Sialkot on 15-9-2000. He then approached this Court through Criminal Miscellaneous No,5710-B of 2000 for the same purpose which petition came up for limine hearing on 3-10-2000 when notice was issued in the said petition. While the said bail petition was still pending disposal, an application bearing Criminal Miscellaneous No,7-M of 2001 was filed in this Court seeking withdrawal of the said bail petition.
Before granting the said prayer, this Court directed Mr.Muhammad Shan Gul, Advocate to find out from the concerned jail whether the petitioner was still in custody. On 1-2-2001 Mr.Muhammad Shan Gul, Advocate informed us that the petitioner had since been released on bail through an order dated 14-12-2000 which order had obviously been passed during the pendency of the said accused person's bail petition before this Court.
2. Confronted with this situation, we asked the learned Sessions Judge, Sialkot to send a copy of the said order dated 14-12-2000 which directed the release of the said accused person on bail and we also asked the learned Sessions Judge to explain the powers under which he had granted bail to the said accused person when his petition, for the said purpose was pending decision before this Court. Through his report dated 24-2-2001 the learned Sessions Judge submitted that it was on 14- 12-2000 that he inspected the Sialkot Jail and that it was on the said date that in exercise of the Suo Moto powers he had directed the release of 86 accused persons on bail; that in the application submitted by the petitioner to him on the said date, he had not mentioned that he had earlier sought his release on bail from the Court of Session and that his said plea had been dismissed by the said Court or that his petition for his release on bail was pending adjudication before this Court.
3. It was in these circumstances that a notice was issued to Muazzam Khan accused-petitioner to show cause why the bail secured by him in the above noticed manner be not recalled. Despite our said notice the petitioner did not enter appearance and it was on 18-7-2001 that we issued warrants for his arrest and for his production before this Court. On 1-8-2001 the petitioner entered appearance and prayed that the operation of the said warrants for his arrest be suspended. This prayer was granted.
4. We have gone through the above mentioned order dated 14-12-2000 passed by the learned Sessions Judge of Sialkot. The said order envisaged release of accused persons on bail who were accused of possession of narcotics up to 200 grams on each one of them furnishing personal bond in the sum of Rs,2,000 and which order also directed release on bail of accused persons allegedly found in possession of narcotics beyond 200 grams but less than one kilogram subject to each one of such accused persons furnishing bail bonds in the sum of Rs,5,000 to the satisfaction of the learned Senior Civil Judge, Sialkot.
5. The release of Muazzam Khan petitioner on bail through the said order dated 14-12-2000 is open to exception for more than one reasons: Firstly, because he had secured the said bail by concealing the factum of the earlier dismissal of his bail plea by a learned Additional Sessions Judge at Sialkot and also by concealing the pendency of his bail petition before the High Court and secondly for the reason that even the bail granting order in question dated 14-12-2000 had directed release, on bail, of persons accused of possession of less than one kilogram of narcotics while the petitioner, as per the allegations levelled through F.I.R. No,143 dated 20-4-2000 of Police Station Rangpura, Sialkot was accused of being in possession of one kologram of Charas which was thus one kologram of narcotics and which one kilogram is obviously not less than one kilogram of narcotics.
6. For the above reasons, the release of Muazzam Khan petitioner on bail is recalled.
7. The learned counsel for the petitioner then submitted that the petitioner's bail application which had been filed in this Court be decided on merits. He canvassed bail for the petitioner on the ground that the offence alleged against the petitioner did not fall within the prohibitory clause of section 497(1), Cr . P. C that the C . I. A . Inspector who had conducted the raid in question had no jurisdiction to do the same and thus all subsequent proceedings were illegal; that no independent witness of the locality had been associated with the alleged recovery and that in the circumstances, the petitioner was entitled to be released on bail.
8. It has been repeatedly held by this Court that the fact that an offence was not hit by the prohibition contained in section 497(1) of the Cr.P.C. Did not make the said offence a bailable offence and that the discretion still remains with the competent Court to consider whether a person accused of such an offence did or did not deserve the grant of bail to him. It has also been repeatedly held by this Court that persons who are allegedly involved in spreading narcotics in the society were not the kind of persons who were entitled to any leniency or sympathy and did not deserve to be released on bail unless any of such accused person could demonstrate that there were reasonable grounds to believe that he was not guilty of the offence in question or that there were sufficient grounds warranting further inquiry into his guilt. The petitioner has not been able to show as to why such a substantial quantity of narcotics should have been falsely planted on him and it is thus obvious that the petitioner does not satisfy conditions laid down in section 497(2) of the Cr.P.C.
9. It has been held by the Hon'ble Supreme Court in Bashir's case PLD 1997 SC 408 that the mere fact that a case had been registered by a police officer who was not authorised to do the same, could not be fatal to the prosecution. It is also a principle too well established by now that absence of the witnesses of the locality would also not be fatal to the prosecution case because members of the public were generally reluctant to offer themselves as witnesses for any such case. Needless to mention here that the employees of Police Department were competent witnesses in the eyes of law and unless it could be shown that any such witness had any motive in the matter, no serious exception could be taken to the testimony offered by such a witness.
10.Criminal Miscellaneous No,2991- C/B of 2001 and Criminal Miscellaneous No,5710-B of 2000 are disposed of in the above terms.
11.As has been noticed by us above, the order dated 14-12-2000 passed by the learned Sessions Judge of Sialkot granting bail to 86 accused persons had directed release of accused persons on bail who had been allegedly found in possession of less than one kilogram of narcotics. Mauzzam Khan petitioner stood accused of being in possession of one kilogram of Charas. Bail bonds s per the above-mentioned order of the learned Sessions Judge were to be submitted with the learned Senior Civil Judge of Sialkot.
12. Let the said Senior Civil Judge submit a report as to how the personal bond of Mauzzam Khan petitioner who is an accused person of case F.I.R. No,143 dated 20-4-2000 of Police Station, Rangpura, Sialkot, was entertained/accepted by him and how the Robkar was issued for his release from jail. This explanation shall be sent to the Registrar of this Court within two weeks for the information of this Bench on the administrative side.
13. We may also bring it on record that we have not been able to appreciate the above noticed manner in which bail was granted to 86 persons involved in narcotics cases. Needless to add that grant or refusal of bail is a judicial order which can be passed only after judicial application of mind to the facts of each given case. The practice of releasing accused persons through such-like general orders which did not disclose proper judicial application of mind, is not envisaged by law and must therefore, be discontinued.