2019 PLP 1655 (MLD)

ALI BAIG, J.

Brief facts giving rise to the filing of the instant application filed under section 497(5), Cr.P.C. for cancellation of bail granted to the respondent/accused by the Learned Sessions Judge/Special Judge CNSA Hunza are that on 5.8.2017 at 10:15 a.m. the complainant namely Mohammad Ashraf I.P. incharge ANF check post Sust received a spy information that the present respondent/accused namely Mohammad Akram who is an agent of international sumggler namely Yasir resident of Mardan has concealed herion in the carpets with intention to smuggle the same from Sust to China. The said consignment/carpets have been kept at the basement of Tibet Hotel. On receipt of this spy information, the raiding party of ANF officials reached at Tibet Hotel Sost at 10:45 a.m. on 5-8-2017. The raiding party of ANF officials arrested the respondent/accused Mohammad Akram. He disclosed that 5 bundles carpets are lying in the basement of the aforesaid hotel, he has concealed heroin inside the carpets and he intends to export the same to China. On opening of the bundles of carpets one by one raiding party found heroin concealing inside of carpets. Accordingly, the ANF officials recovered 9500 grams heroin from the said carpets. The ANF officials out of 9500 grams heroin separated 10 grams heroin form each for sending the same to the chemical examiner for his expert report. The recovered heroin was sealed in a parcel on the spot and the complainant reached at police station ANF Gilgit for registration of formal FIR and got registered FIR No. 10/2017 under sections 6/9(c) and 14/15 of CNSA, 1997.

2. The learned special prosecutor appearing on behalf of the state/ ANF contended that the respondent/accused was caught red handed at Tibet Hotel Sust and huge quantity of 9500 grams heroin was recovered from his possession on the spot. The respondent / accused is involved in a heinous offence and offence under section 9(c) CNSA, 1997 falls within the ambit of prohibitory clause of section 497, Cr.P.C. and section 51 of CNSA, 1997 barred the trial court for grant of bail in such like cases. The learned special prosecutor ANF further argued that the case of prosecution is fully supported by the prosecution witnesses. The learned trial court has granted bail to the respondent by touching the merits of case which is not permissible at bail stage, therefore bail granted to the respondent/accused may be cancelled in the interest of justice.

3. Conversely, the learned counsel for the respondent/accused mainly contended that police/ANF officials reached at the Tibet Hotel Sust on a spy information, therefore, they could have arranged private witnesses to act as mashirs as Hotel staff were available on spot but they did not do so and the prosecution has violated the mandatroy provisions of section 103, Cr.P.C. so, therefore a doubt has been created with regard to the recovery of heroin as such the learned trial court has rightly granted the bail to the respondent. The learned counsel for the respondent / accused further argued that there is 26 hours delay in lodging FIR which has not been explained by the prosecution and prosecution is deliberately avoiding to produce witnesses in the case as they know that these P.Ws. will not support their stance.

4. We have given due consideration to the arguments advanced by the learned counsel for the parties.

5. From perusal of record it reveals that the prosecution/ANF officials have recovered huge quantity of 9500 grams heroin which was concealed inside the carpets and the carpets were kept in the godown/basement of Tibet Hotel Sust and recovered on the pointation of the respondent/accused, hence the accused/respondent is prima facie connected with the commission of alleged offence and offence under section 9(c) CNSA, 1997 falls within the ambit of prohibitory clause of section 497(1), Cr.P.C. The learned trial court while granting bail in favour of the respondent observed that the ANF officials have not recorded statements of employees of Tibet Hotel, which was the best evidence available to the prosecution. In this connection it is observed that it is settled principle of law that provisions of section 103, Cr.P.C. does not apply if the recovery is not made in pursuance of search of a house but is made elsewhere, for instance on the high ways or on the road side, or the public places like, railway station, Bus stand, the search of baggage at air port or Hotel etc.

6. Even otherwise by virtue of section 25 of Control of Narcotics Substances Act, 1997 the provisions of section 103, Cr.P.C. are not applicable in the cases of Narcotics Substance Act, 1997. The respondent has remained in jail for a period of only one and half months whereas he is involved in a heinous crime which entails capital punishment.

7. Moreover, the learned trial court has wrongly touched the merit of the case as deeper appreciation of evidence is not permissible at bail stage rather tentative assessment of material / evidence collected by the prosecution is required to be carried out at bail stage.

8. In the instant case the presence of the respondent along with recovered narcotics suggest to hold prima facie that he is involved in the commission of offence besides the sentence prescribed under section 9(c) 1997 is death or imprisonment for life or imprisonment for a term, which may extend to 14 years therefore he was not entitled for concession of bail .

9. After considering the material available on the record we are of the considered view that there are reasonable grounds for believing that the respondent is prima facie involved, in this case which is very heinous in nature. Thus the trial court was not justified in granting the bail in favor of present respondent/accused. Therefore, the impugned bail order dated 22/9/2017 passed by the trial court is hereby recalled. The respondent/accused present in the court, he is taken into custody and committed to judicial lock up to face trial in the Court of Special Judge CNSA, Hunza. The learned trial court is directed to conclude the trial within 03 months positively. If the trial is not concluded within above stipulated period, the petitioner will be at liberty to move a fresh bail application in the trial court, if so advised.

10. Registrar Chief Court is directed to issue committal order of the accused in the light para-9 of the instant order. File. SA/37/GB Bail refused.