2015 Y L R 568
[Balochistan]
Before Muhammad Noor Meskanzai and Muhammad Kamran Khan Mulakhail, JJ
The STATE through Regional Director Anti -Narcotics Force, Quetta ---Applicant
Versus
ABDUL HAMEED---Respondent
Criminal Bail Cancellation Application No.63 of 2014, decided on 23rd September, 2014.
Criminal Procedure Code (V of 1898) ---
----Ss. 497(5) & 498---Control of Narcotic Substances Act (XXV of 1997), Ss.9(c), 15 & 51---
Possessing and trafficking of narcotics ---Pre -arrest bail, cancellation of ---Principal accused
disclosed the name of accused during the on- spot interrogation, but no private person was
associated during the course of alleged disclosure made by principal accused ---Accused,
according to prosecution case, was fugitive from law and remained absconder, but documents
submitted by accused had shown that accused had gone abroad at the time of alleged recovery;
and on his return, on knowing about registration of the case against him, he surrendered before
the court and obtained ad interim pre -arrest bail ---Section 51 of Control of Narcotic Substances
Act, 1997 though imposed an embargo on grant of bail to accused in the narcotics case, but, the
right of bail could not be withheld as punishment ---Court, in appropriate cases, therefore, could
grant bail ---Allegation of mala fides on the part of prosecution agency, prima facie was
plausible ---For purpose of cancellation of bail, agency/ person had to show that either the order
passed by the court was perverse or against the princi ples of law, or accused after being admitted
to bail was trying to tamper with the evidence, or there was apprehension of repetition of the
offence---Neither any such ground was agitated, nor argued ---Disclosure by principal accused
was not admissible as e vidence---Evidentiary value of such disclosure was to be seen at trial, but
same could only be termed as a "statement under S.161, Cr.P.C."; which could be considered for
purpose of cancellation of bail; and case against accused required further probe ---Or der granting
bail, in circumstances, could not be interfered with---Application for cancellation of bail, being
devoid of merits, was dismissed, in circumstances.
The State v. Abdul Qayum 2001 SCMR 14 ref.
Shoukat Rakhshani, Special Prosecutor, ANF f or Applicant.
Syed Ayaz Zahoor for Respondent.
Date of hearing: 9th September, 2014.
ORDER
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---This application for
cancellation of bail has been filed by the Regional Director, Anti Narcotics Force Balochistan
Quetta, (ANF) against the respondent Abdul Hameed, who was admitted to pre -arrest bail vide
order dated 27- 5-2014 passed by the Judge Special Court (CNS) Balochistan Quetta ("trial
court") in case F.I.R. No.02 of 2014 dated 12- 2-2014, under sections 9(c) a nd 15 of the Control
of Narcotic Substances Act, 1997 ("CNS Act") lodged with the Police Station ANF Turbat.
2. The brief facts out of which this application has arisen are that on the stated date and
time, a raiding party was constituted by the ANF in p ursuance of the spy information, that a huge
quantity of heroine is being smuggled from Turbat to abroad by the notorious smugglers Haji
Hameed, Khaleel and Mohsin in a vehicle Toyota Surf. The raiding party cordoned the Gwadar
road and started checking vehicles, when at about 6:00 pm the said vehicle was seen, coming
from Turbat. On pointation of the informer, the vehicle was intercepted in which the driver
Mohsin son of Lal Hussain was apprehended. Who on the spot, when interrogated, disclosed that
he alo ng with one Haji Hameed and Khaleel are partners in drugs business and today he was
going towards Jeevani to smuggle heroine abroad. On pointation of the accused five parcels were
recovered in which 87 kg heroine was found. The ANF raiding party after compiling the
requisite documents arrested the accused and the F.I.R. was lodged.
3. The learned Special Prosecutor contended that under section 51, offences falling within
the ambit of the CNS Act are non -bailable in nature, but the trial court granted bail to the
respondent/accused without appreciating the fact that he was nominated in the F.I.R. and his
name was disclosed by the principal accused. He next added that the respondent/accused has
failed to allege any mala fides to the ANF raiding party, which is a condition precedent for
granting ad -interim bail. He maintained that due to pre -arrest bail granted to the
respondent/accused the investigation could not be conducted properly and during the period of
ad-interim bail the respondent/accused did not cooperate with the investigating agency. He
further added that the respondent/accused is a well -known drug trafficker and a number of
narcotics related cases have been registered against him. He finally urged that the order passed
by the trial court is tantam ount to rendering verdict of acquittal and due to such observation a
very serious prejudice has been caused to the prosecuting agency. He finally prayed for setting
aside the impugned order by way of cancellation of bail in order to interrogate the
respondent/accused.
4. Syed Ayaz Zahoor, Advocate Supreme Court, the learned counsel for respondent/accused
strongly opposed the contention and contended that prior to surrender of the respondent/accused
for ad -interim bail, the challan was already subinitted b efore the trial court, therefore, the
contention that the respondent/accused is required for further investigation has no force. He
added that during the ad- interim bail the respondent/accused was fully cooperating with the
investigation agency and he was regularly appearing before the investigation officer. He pointed
out that on 13- 5-2014 the respondent/accused was on ad- interim bail, when his identification
parade test was conducted under the supervision of the Judicial Magistrate -XII, Quetta, in
connect ion with F.I.R. No.03 of 2011, which too relates to the ANF. He further maintained that
the patent and latent mala fides of the ANF were floating on surface; therefore, the
respondent/accused was rightly admitted to bail. He submitted various documents and also a
copy of passport of the respondent/accused with the contention that at the time of alleged
recovery the respondent/accused was out of the country, who had made exit from Karachi
International Airport for Dubai on 9- 2-2014 and returned on 18- 2-2014. He further added that
the disclosure made by the principal accused is not admissible in evidence against the
respondent/accused; therefore, he was rightly admitted to bail. He finally urged for dismissal of
the application.
5. We have heard both the par ties and have also minutely perused the record of the case
with their assistance and observed as follows: --
(a) The F.I.R. in the instant case was registered on 12- 2-2014 at 9:30 p.m.
(b) According to the F.I.R. the vehicle was intercepted and the pri ncipal accused therein was
apprehended at 6:00 pm during the broad- daylight on Gwadar -Turbat highway.
(c) The area from which the alleged recovery was shown is Gwadar -Turbat highway;
admittedly except the principal accused Mohsin no one else was arrested .
(d) The F.I.R. states that the principal accused disclosed the name of the respondent/accused
during the on- spot interrogation but no private person was associated during the course of
alleged disclosure made by the principal accused.
(e) The F.I.R. was lodged on 12- 2-2014 and according to the prosecution case the accused
respondent was fugitive of law and remained absconder but the documents submitted by the
respondent/accused show that he had been to abroad at the time of alleged recovery and on his
return and on having come to know about registration of the case against him he surrendered
before the court and obtained ad- interim pre -arrest bail.
(f) Although section 51 of the CNS Act imposes an embargo on grant of bail to a person/an
accused in a narcotics case but following the law of precedents and the dictum laid down by the
Hon'ble Apex court, the right of bail cannot be withheld as punishment, therefore in appropriate
cases the courts can grant bail.
(g) The allegation of mala fides on part of prosecution agency is prima facie plausible, when
the respondent/accused despite being absconder in another case relating to the ANF, was also
appearing before this court and that too in a pending litigation with the ANF but despite his
nomination by na me no effort for his arrest has been shown in the record.
(h) For purpose of cancellation of bail the person/agency seeking cancellation of bail, has to
show that either the order passed by the court is perverse or against the principles of law of bail
or the accused after being admitted to bail is trying to temper the evidence or there is any
apprehension of repetition of the offence. Neither any such ground was agitated nor argued in the
instant case.
(i) The alleged disclosure made by the principal accused is not admissible as evidence,
though the evidentiary value of such statement is to be seen at trial but same can only be termed
as a statement under section 161 of the Criminal Procedure Code, 1898, therefore, cannot be
considered for purpose of c ancellation of bail and case against the respondent/accused requires
further probe. Reference is made to the judgment rendered in The State v. Abdul Qayum (2001
SCMR 14).
For the foregoing reasons we are not inclined to interfere with the order passed b y the
learned Special Judge (CNS) Quetta.
Thus the application being devoid of merits is dismissed accordingly.
However, the observations made herein above are meant for disposal of this application,
which shall have no bearing on merits of the case.
HBT/15/Bal Application dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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