2003 P Cr (PLP)

(vi) That it is further, submitted that the bail granted to the accused was against the scheme of the C.N.S. Act, 1997, as section 51 of the C.N.S. Act, 1997, speaks that no bail shall 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. (vii) That after recording the evidence of the witness of the prosecution there are justifiable grounds to cancel the bail of the accused which has been granted to the accused contrary to the law. (viii) That the previous conduct of the accused/respondent shows that he would repeat the offence. He has faced the trial of a case under the C.N.S. Act, 1997 before this Court which proves that he is involved in drug trafficking. The learned Special Judge by order, dated 29-8-2002 after hearing the Special Prosecutor and the defence counsel cancelled the bail. Hence the present bail application. ? We have heard Mr. Rasheed A. Razvi learned counsel for the applicant and Mr. Shoib Ashraf, Special Prosecutor, ANF. The latter has opposed the application on the ground that there is every apprehension that the applicant would jump the bail. Mr. Razvi, learned counsel for the applicant with vehemence contended that the order is not sustainable in law. Bail has been cancelled solely on the ground that the applicant would jump the bail in absence of any cogent reason and sufficient material produced by the prosecution. The reason for apprehension shown against the applicant was that co-accused Sabir Ali Brohi escaped from the police custody, while he was being brought before the Court during trial. Mr. Razvi while relying on Tariq Bashir v. The State PLD 1995 SC 34 contended that the principles laid down for grant of bail and cancellation of same are altogether different and once bail, is granted by a Court of competent jurisdiction, then strong and exceptional grounds would be required for the cancellation of bail. There is no legal compulsion to cancel bail of the accused who allegedly has committed crime punishable with death, imprisonment for life or imprisonment for 10 years. He also contended that the Supreme Court reiterated the same view in Syed Azmatullah v. The State PLD 1996 SC 241 that once bail is granted by a Court of competent jurisdiction, then strong and exceptional grounds would be required to cancellation of the same. The provisions of section 497(5), Cr.P.C. are not punitive. There is no legal compulsion for canceling bail granted in case the punishment is death, for life or for 10 years. Mr. Razvi contended that the applicant has not misused the concession of bail and remain attending the hearing for about 4 and a half years and bail has been cancelled only on mere allegation of apprehension that he would jump the bail in absence of reasonable ground and referred the observation in case of Govt. of Sindh v. Raeesa Farooq 1996 SCMR 1283, wherein Justice Saleem Akhtar (as he then was) expressed that there should be reasonable grounds as distinguished from mere allegation of suspicion while reiterating the principle laid down by Supreme Court in Ch. Abdul Malik v. The State LD 1 68 SC 349 wherein the following observation was made. ? "However, strong the suspicion may be, it would not take the place of reasonable ground. The words 'reasonable grounds' are words of higher import and significance than the word 'suspicion'. It is for the prosecution to show reasonable grounds to believe that the accused has committed the crime. If the Court is not satisfied with the material placed before it that there exist reasonable grounds to believe that the accused is guilty, then the Court has the discretion to grant bail. In the present case as discussed above, the learned Judges came to the conclusion that the action being mala fide and also the material documents not having been produced, no reasonable grounds existed to believe that the accused had committed the crime. This Court rarely interferes with the discretion exercised properly, judicially and legally by the High Court. In our view, considering the facts and circumstances of the case and the material produced, the learned Judges were justified in releasing the detenu on furnishing personal bond. In cases where the liberty of a citizen is involved, the action initiated by the police/prosecution is found to be mala fide and intended to extract evidence or information from the detenu the superior Courts should not be reluctant to step in and grant relief to the citizens". Mr. Rasheed A. Razvi also contended that the learned single Bench has followed the view expressed in Tariq Bashir v. The State in The State v. Hussain PLD 2002 Kar. 1, wherein application for cancellation of bail moved on behalf of State was dismissed by highlighting the principle governing cancellation of bail as follows:-- "Normally the grounds which are taken into consideration for cancellation of bail are. (i) That the applicant has misused the concession of bail and is causing fear and alarm to the complainant and the prosecution witnesses. (ii) That there is likelihood of witnesses being won over and their evidence being tampered with. (iii) That there is likelihood of repetition of the commission of the crimes which the accused had allegedly committed. (iv) That the accused was likely to abscond and (v) That the order granting the bail was arbitrary, capricious and against the evidence available with the prosecution." The learned Special Prosecutor has also placed reliance on the same case and contended that there is every likelihood that the applicant may abscond. The learned trial Court on mere suspicion shown by the prosecution without reasonable ground, cancelled the bail of the applicant against the principle laid down by apex Court in Tariq Bashir (supra), and reiterated in subsequent pronouncement of Amanullah Shah v. The State PLD 1996 SC

241. The bail can neither be withheld nor cancelled as punishment. The applicant has not absented himself during the period of bail for about 4-1/2 years. Withholding of the concession enjoyed the applicant for 4-1/2 years by the trial Court in these circumstances is unwarranted. Consequently, we granted bail to the applicant in the sum of Rs.1 million with R.R. bond in the like amount to the satisfaction of the trial Court. These are the reasons for the short order announced on 7-11-2002. H.B.T./M-492/K????????????????????????????????????????????????????????????????????????????????????????????? Bail granted.