' By this order petitions for bail after arrest moved by Abdul Shahid Qureshi and Javaid Saleem, are being disposed of together as both are involved in the same case bearing F.I.R. No,7, dated 20-2- 2001 registered under section 9(c), read with sections 14 and 15 of the Control of Narcotic Substances Act, 1997, with Police Station, A.N.F., Rawalpindi.
2. In accordance with the contents of the F.I.R. Lodged at the instance of Ghulam Shabbir, Inspector, Custom Airport when at about 11-00 a.m. On 20-2-2001 within the premises of Shaheen Cargo Export Hall, Islamabad, Muhammad Wasim, Sheikh Muhammad Iqbal and Ghulam Shabbir came alongwith their consignment of hot pots/lunch boxes, heroin 41-Kg. In weight was recovered from the said Lunch Boxes. So, this recovered heroin and the export documents were taken into possession. After completion of necessary investigation, challan was submitted before the learned trial Court wherein both the petitioners were cited as prosecution witnesses because it transpired during the investigation that the consignment was being exported through Iqra Traders and Irsam Enterprises.
3. On 8-12-2001 the learned trial Court while framing the charge found that the consignment was being exported through Iqra Traders owned by Abdul Shahid Qureshi, petitioner, therefore, after hearing Mubarik Ali Khan, Inspector, arrived to this conclusion that on basis of export documents for the consignment as discussed above, prima facie Shahid Qureshi is involved in this case as an associate, therefore, non-bailable warrants of arrest was issued and the case was adjourned for 22-12-2001. Abdul Shahid Qureshi availed legal remedy up to the Honourable Supreme Court of Pakistan, last of all, while hearing Abdul Shahid Qureshi through his counsel this point was raised as to why Javaid Saleem another prosecution witness having the same allegation against him was not summoned. So, after hearing the learned counsel as well as the S.P.P. For the Sate, the learned trial Court arrived to this conclusion that both the petitioners are connected prima facie with the commission of offence under section 9(c) read with sections 14 and 15 of the Control of Narcotic Substances Act, 1997. In other words the allegation against them was to facilitate or associate with the clearing agents by providing them essential export documents so that the consignment consisting of Lunch Boxes having heroin therein could be exported, therefore, now on the direction of the Court from the position of the prosecution witnesses they stand as accused alongwith their co-accused as mentioned above in this case.
4. 1 have heard the learned counsel for the parties and I have also gone through the relevant record placed before me.
5. Learned counsel for the petitioners argued that the learned trial Court has dismissed the bail petitions without any justification because actually both the petitioners were prosecution witnesses who were made as accused by the learned trial Court without any express legal provisions and when, at present there is no evidence against the petitioners except, perhaps their own statements, then it is a case of further inquiry. They further argued that A.N.F. Authorities had thoroughly examined this case during the investigation and last of all being convinced about the innocence of the petitioners they were cited as the prosecution witnesses in the report under section 173, Cr.P.C.
And that in order to strengthen the prosecution case the statement under section 164, Cr.P.C. Of Abdul Shahid Qureshi petitioner was got recorded and that actually it is a case of no evidence. So far as both the petitioners are concerned, and as far as the export documents are concerned, even on this point the Investigating Agency found the petitioners as innocent, therefore, the detention of the petitioners for an indefinite period would serve no purpose and that actually the learned trial Court should have directed to furnish the surety bonds at the time of appearance of the petitioners before the learned trial Court. Finally they argued that section 51 of the Control of Narcotic Substances Act, 1997 is no bar in grant of bail to the petitioners because, besides, the punishment provided for the main offence the lesser, penalty may also be awarded. They referred to the cases reported in Muhammad Hanif Khan v. The State, 2001 PCr.LJ 19 (Lahore); Sakhawat Ali Shah v. The State, 1999 YLR 1286 (Peshawar); Maqbool Ahmad and another v. The State and another 1997 PCr.LJ 1074 (Lahore); Ghulam Sarwar v. State, NLR 1985 UC 396; Muhammad Aslam v. The State, 2002 PCr.LJ 110 (Lahore) and Rafaqat Ahmad v. The State, 1999 YLR 2627 (Karachi) in support of their arguments.
6. So far as the learned counsel for A.N.F. Is concerned, he repeated the claim of the Agency that both the petitioners are their witnesses.
7. Section 51 of the Control of Narcotic Substances Act, 1997 reflects on this situation that bail shall not be granted to an accused person charged with an offence under the Control of Narcotic Substances Act of 1997 or under any other law relating to the narcotics where the offence is punishable with death while in accordance with subsection (2) of this section bail is not to be granted in other offences normally unless the Court is of the opinion that the case is fit for the grant of bail. The point for examination is as to whether section 51 of the Act (ibid) is a bar in case of grant of bail in an offence under section 9(c) of the said Act because the said offence is punishable with death also. It appears from the perusal of section 51 of the said Act that this section is a bar on grant of bail in an offence where the offence is exclusively punishable with death and when the upper limit of the punishment is death and that the lower limit is 14 years' imprisonment in the said offence then it means that in grant of bail in the offence under section 9(c) of A the Act ibid is no bar, it is bar when the offence under this Act or under any law connected with the narcotics is exclusively punishable with death. Anyhow while granting bail in a case under section 9(c) of the Control of Narcotic Substances Act, 1997 it should be kept in mind that the offence falls within the prohibitory clause of section 497, Cr.P.C. And that the bail petition should be disposed of strictly or merits.
8. What happened in the instant case is, that the Investigating Agency cited both the petitioners as prosecution witnesses despite the fact that all necessary Export documents were provided by both the petitioners. When this situation came up before the learned trial Court before taking the cognizance of this case i,e, at the time of framing of the charge the Court observed that Abdul Shahid Qureshi was in fact an accused in the case on basis of the tentative assessment. Same position was developed later on in case of petitioner Javaid Saleem. There is no denial from the side of both the petitioners that they did not provide the Export Documents to their co-accused from whom possession a huge quantity of the narcotics was recovered. So, prima facie, it appears that both the petitioners are connected with the allegation of facilitation of the commission of offence under section 9(c) of the Control of Narcotic Substances Act, 1997, which being so attracts the provisions of sections 14 and 15 of the Act (ibid). Resultantly, the offence falls within the prohibitory clause of section 497, Cr.P.C. And being so it is not a fit case for bail and that the cases reported in Muhammad Hanif Khan v. The State 2001 PCr.LJ 19, Sakhawat Ali Shah v. The State 1999 YLR 1286 (Karachi); Maqbool Ahmad and another v. The State and another, 1997 PCr.LJ 1074 (Lahore); Ghulam Sarwar v. The State NLR 1985 UC 396 and Muhammad Aslam v. The State, 2002 PCr.LJ 110 (Lahore) cited by the learned counsel for the petitioners are not having the identical facts, therefore, provide no blood to the cause of the petitioners.
9. In view of above, both the petitions being without merits are hereby dismissed.
Bail declined.