1990 P Cr (PLP)

(c) Criminal Procedure Code (V of 1898)

S. 497

Examination of evidence

Microscopic examination of prosecution evidence at the stage when entire evidence has been led save for one witness will not be appropriate lest it might cause prejudice to anybody's case. Ijaz Hussain Batalvi for Petitioner. Latif Ayyaz for the State. Seeking permission to urge additional grounds .in the captioned bail petition is allowed. MAIN PETITION. Petitioner has been arrested in the case registered vide F.I.R. No. 29 of 9-10-1988 under Articles 3/4 of Prohibition (Enforcement of Hadd) Order, 1979 read with section 13/14 of the Dangerous Drugs Act, 1930 at Police Station Civil Lines, Lahore alleging that pursuant to classified information received by the Regional. Director Narcotics Control Board that a gang of International drug traffickers will be transporting heroin in bulk across the border in a white car bearing mark FD(i-4280 (Toyota Corolla), huge contingent comprising police personnel, representatives of the joint task force of the Narcotics Control Board and other allied agencies, took positions around Alhamra Art Centre, Shahrah- Quaid-e-Azam, Lahore near Avaris Hotel, and after a while, upon spotting the marked vehicle, coming down from Charing Cross, was stopped carrying 4 persons viz. petitioner on the driver seat, with Sultan Muhammad of village Budh Pir, Kohat Road, Peshawar on the off-side front seat, while Abdul Samad Koko Khel of Jamrood Khyber Agency alongwith Babar Rashid of Sialkot presently resident of Christian Town, Rehmanpura, Lahore were occupying the rear seats. Upon halting of the vehicle, all four of them endeavoured to vanish away but were apprehended on the spot; likewise the car was taken into custody wherefrom, two bags containing 26 packets and 24 packets respectively, each carrying 1 kilogram of heroin lying on each side of median ridge between the space intervening front and the rear seats were recovered wherein bail is being sought by contending that the statutory. period of one year enshrined in, clause (a) of third proviso to section 497(1), Cr.P.C. has elapsed, that the alleged recovery took place a day preceding the raid from another person in a Five.Star Hotel and the petitioner has been falsely roped in, that not only the car in question does not belong to him but even otherwise it being in a bad shape could have not been engaged in such a hazardous journey, that the prosecution evidence is discrepant and contradictory viz. two of the vehicles allegedly deployed in the raid i.e., LHR 9152 and LHR-8780 as per log books were stationed elsewhere, one of the members of the raiding party, Tahir Alam P.W.7 according to the daily diary was out on patrol duty, thus could have not participated in the raid, that statements of Rinwan Ahmad P.W.2 and Siddique Gohar P.W.6 qua deposit of case property in the Malkhana and as to the executants of the F.I.R. are at variance, the space between the two seats is too scanty to accommodate the case property and lastly the prosecution witnesses declined the offer to testify the prosecution story on the Holy Qur'an. On the other hand, learned counsel appearing on behalf of the Narcotics Control Board has opposed the bail petition by submitting that progress of the trial has been partly hindered due to sickness of co-accused Babar, adjournments sought by the learned counsel of the co-accused, and initiation of proceedings for resolving controversy as to jurisdictional competency of the trial Court, that all the prosecution witnesses have been examined save for one, that lastly petitioner is dangerous and desperate character.

2. Having considered the arguments canvassed at the Bar, I am not persuaded to grant bail to the petitioner. Perusal of the record reveals that-the accused persons have also contributed towards the delay viz. on few occasions the A case had to be adjourned due to sickness of one of the co-accused while - on couple of occasions, adjournments were sought on behalf of learned counsel of another co-accused, similarly certain amount of time was consumed in resolving j the controversy as to jurisdictional competence of the trial Court which was eventually set at naught by the pronouncement of Federal Shariat Court. Independent thereof, the statutory concession conceived by the third proviso to section 497(1), Cr.P.C. is itself subject to the rubric enshrined in the exceptions thereto viz. it cannot be availed of by a previous convict or a person who, in the opinion of the Court is a hardened, desperate or dangerous criminal, meaning thereby the Legislature in its wisdom has expressly denied this concession, inter alia, to a desperate character. And in the context of things, petitioner, prima facie, appears to be a desperate dare-devil i.e. in utter disregard, showing competent indifferences and caring too hoot for the consequences that might ensure, through the thick of things, he ventured upon captaining a vehicle engaged in transporting three passengers, two of whom hailing from tribal area with 50 kilograms load of heroin, cannot press into service the statutory clause for seeking bail. Regarding the contradictions and discrepancies pointed out by the' learned counsel for the petitioner in the prosecution evidence, though it suffice, to observe that any microscopic examination at this juncture of the trial, , hen entire evidence has been led save for one witness will not be appropriate Jest it might cause prejudice to anybody's case; however, tentatively, qua entries in the vehicle's log books and departure entry in the daily diary of Tahir Alam P.W.7, it may be mentioned that for undertaking mission of this nature, it is not unusual for the law enforcing agency with a view to preserving secrecy lest the mass movement might put the interested quarters on the alert or otherwise the information is leaked out. Similarly, no premium can be reaped out of the contention as to vintage and ownership of the car, because in the field of criminology, it is quite common that insignificant vehicles of common make are purchased on blank transfer letters for deployment in incognito adventurous travelling and after the event are abandoned, disposed of or destroyed with a view to wiping out the traces. Likewise, the contention that the leg space catered for the passengers occupying rear scats is not commodious enough to house the two bags is devoid of any substance because the same is expandable by making requisite adjustments in the front seat. Furthermore, no explanation has been tendered for putting a web' around the petitioner by planting such a huge quantity of heroin. Prima facie, the petitioner as a driver of the vehicle played predominant role in transporting the case property, with which, alongwith the co-accused, he was apprehended on the spot, constitutes reasonable grounds for believing his: F involvement in the offence charged falling within the prohibition contemplated by' section 4970), Cr.P.C. therefore, is not entitled to the concession of bail. Resultantly, this petition fails and is accordingly hereby dismissed. N.H.Q./T-81/L Bail petition dismissed