2000 PLP 842 (MLD)

(d)??????? there is no evidence that applicant/accused had any connection with S.K. a Company the exporting firm of the alleged consignment to Montreal; . (e)??????? in his capacity as Assistant Director FIA the applicant retired in Grade‑17 with excellent and unblemished record; (f)???????? according to the prosecution witness Aqil Mehmood (who disclosed during investigation) the applicant had used his telephone and made class abroad but there is no proof to substantiate this allegation, particularly when the said .telephone remained throughout in the possession of P.W. Aqil Mehmood who is the partner of prosecution witness Ziaul Islam whose hearsay evidence is not admissible; (g)??????? the learned trial Court erred in law by placing reliance on the statement of co‑accused Muhammad Ashraf which was recorded during the investigation; The learned Dy.A.‑G. while vehemently opposing the request for bail submitted:‑‑ (i)???????? the applicant is involved in a heinous offence and accordingly in view of the bar contained in section 51 of the Act XXV of 1979 he is not entitled to bail. Even otherwise the punishment provided for the alleged offence in this Act is death; (ii)??????? he also complained that he contacted Mr. Ahmed Saba, the Director A.N.F. on telephone and requested him to send the relevant police papers alongwith the Investigation Officers and the full time prosecutor of the A.N.F. but there was absolutely no response. We gave due consideration to the above submissions and examined the record particularly the complaint and statements of P.Ws. Fawadul Aziz and Ziaul Islam. We first take up the argument in relation to the bar contained in section 51 of Act XXV of 1997, which reads as under:‑‑ "(51) No bail to be granted in respect of certain offences.‑‑(1) Notwithstanding anything contained in sections 496 and 497 of the Criminal Procedure Code, 1898 (V of 1898), bail shall not be granted to an accused person charged with an offence under this Act or under any other law relating to narcotics where the offence is punishable with death. (2)??????? In the case other offences, punishable under this Act, bail shall not be normally granted unless the Court is of the opinion that it is a fit case for grant of bail and against the security of a substantial amount. " The above provisions, of law came up for interpretation before the Hon'ble Supreme Court in Criminal Petition No.391‑I of 1991 Gulzaman Khan v. The State (unreported), decided on 18‑12‑1998 and it was held that the accused can be released on bail notwithstanding the bar contained in section 51 of Act XXV of 1997. It would be advantageous to reproduce the following relevant paras. from the judgment: "The above section bars the grant of bail to an accused person under sections 496 and 497, Cr.P.C. only and that too when he is charged with an offence punishable with death. It is silent about the powers of Court under section 498, Cr.P.C. which is an independent section. It is pertinent to note that in section 51 of Act XXI of 1997 only sections 496 and 497, Cr.P.C. are mentioned without any specific mention of section 498, Cr.P.C. indicating that what was intended to have been excluded had been expressly excluded. If the legislature had intended to exclude section 498, Cr.P.C. also there is no reason why it should not have mentioned the same in section 51 of the Act. It otherwise looks anomalous that a Court may grant pre‑arrest bail to a person accused of an offence punishable with death in exercise of powers .under section 498, Cr.P.C. but the same Court would be incompetent to grant bail if approached by a person for bail after arrest on the same allegations. Guidance can be had from Altaf Hussain v. State (PLD 1985 Lahore 10) wherein it was held by a Division Bench of the Lahore High Court that the High Court's power under section 498, Cr.P.C. remained unaffected and had not been excluded by Ordinance IX of 1984 (Offence in Respect of Banks (Special Courts) Ordinance, 1984. A fine distinction was brought out by the court by holding that the High Court's power under sections 498, CI.P.C: at the trial stage had not been excluded by section 10 of the said Ordinance. In this context the principles of interpretation of statutes as highlighted by this Court in State v. Qaim Ali Shah (1992 SCMR 2192 at page 2217) may be referred to, which are to the following effect:‑‑ (i)???????? that a statute which transgresses on the subject whether as regards his person or property should be so constituted, if possible, which may preserve such rights. (ii)??????? that if two views of a provision of a penal statute are possible, one which favour an accused persons be preferred over‑ the other. As to the applicability of the provisions of Code of Criminal Procedure a reference may be made to section 47 of Act XXV of 1997, which provides that:‑‑ '(47) Application of the Code Criminal Procedure, 1898‑‑‑Except as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), hereinafter referred to as the Code (including provisions relating to confirmation of a death sentence), shall apply to trials and appeals before a Special Court under this Act'. " If the above provisions are read conjunctively with section 51 of the Control of Narcotic Substances Act XXV of 1997, it is clear that applicability of sections 496, 497 and 498, Cr.P.C. is not totally barred in respect of the cases under the ibid Act but the only prohibition is on the grant of bail to a person accused of offence punishable with death while in other cases under the said Act bail may be allowed in suitable cases. It would be worthwhile to point out that under this law there is no prohibition on the suspension of sentence of a convict during the pendency of his appeal. ii this is so how can be the intention of law, to deny the concession of bail to as under‑trial prisoner merely on the basis of accusation in the F.I.R." It is pertinent to point out that the Gulzaman Khan (cited supra) the majority judgment‑ was tendered by Sh. Ijaz Nisar, J., excerpts, wherefrom are quoted above. The minority view is expressed by Sh. Riaz Ahmed, J. but, however, only on appreciation of facts. On law there appears to be no difference of opinion as Sh. Raiz Ahmed, J. in his dissent in para. 1 has agreed with the statement of law as expounded in the majority view, while observing:‑‑ "Sh. Riaz Ahmed, J.‑‑‑I have had the advantage of going through the judgment proposed to be delivered by my learned brothers Raja Afrasiab Khan and Ijaz Nisar, JJ. I regret my inability to agree with them on the question of grant of bail to the petitioners in this case. As far as the question of jurisdiction under sections 497 and 498, Cr.P.C., with regard to the power of the Court to grant bail in the light of the embargo contained in section 51 of the Anti‑Narcotics Control Act‑, 1997 (hereinafter called the Act) is concerned, there is no cavil with the principle of law laid down by my learned brother in a most lucid manner and I agree with the views of my learned brother that despite the provisions contained in section 51 of the Act, the Sessions Court and the High Court have the power to grant bail. However, on merits I would hold that it is not a fit case for the grant of bail." In other words on point of law the decision of the Hon'ble Supreme Court in Gulzaman Khan (cited supra) in unanimous. Respectfully, following the above dictum laid down by the Hon?ble Supreme Court, we do not find any merit in the submission of the learned Dy. A.‑G. Regarding the heinousness of the alleged offence we are of the view that obviously the Court cannot be oblivious to the menace of drugs and their evil effects in our society and the law as to the grant of bail in such offences is more stringent than in other offences but for the purposes of bail the law cannot be stretched in favour of the prosecution unjustly and the benefit of doubt, if any, must go to the accused (see Amir v. The State (PLD 1972 SC 2777). It would also be useful to notice the, judicial trend of widening the scope of bail. In the State of Rajasthan, Jaipur v. Balchand, AIR 1977 Supreme Court 2447 (From: Rajasthan) the Supreme Court of India laid down the following rule:‑‑ "(2)????? The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioners who seeks enlargement on bail from the Court. We do not intend to be exhaustive but illustrative. (3)??????? It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weight with us when considering the question of bail. So also the heinousness of the crime... " In the present case the prosecution has miserably failed to bring any material on record so as to connect the accused/applicant with the commission of the offence. It is not the case of the learned Dy. A.‑G. that there exists evidence even prima facie, against the accused, ,in fact his contention is that in view of the bar spelt out in section 51 (supra) no bail can be granted. Following the judgment of the Hon'ble Supreme Court in Gulzaman Khan (cited supra) since we have come to the conclusion that the bar in the said section 51 cannot hamper the grant of bail there is nothing before us which can justify the rejection of bail. After all we are dealing with a personal liberty of a person which cannot be tempered with save in accordance with law. This is but a fundamental obligation cast upon the functionaries of the State having sanction of the law and the Constitution. International treaties, though not directly enforceable by municipal Courts, are also repletes with such egalitarian expectations. In light of the above the accused is admitted to bail subject to furnishing of one surety to the tune of Rs.5,00;000 (five lacs) alongwith personal bond in the like amount to the satisfaction of the Nazir of this Court as well the security which is laid down under section 51 of Control of Narcotic Substances Act, 1997. N. H. Q./A‑2/K??????????