2001 SCMR 14 (PLP)

ABDUL HAMEED DOGAR, J.

This is 'a petition for leave to appeal against the order, dated 28-4-1999, passed by a Division Bench of the High Court of Sindh, Karachi in Criminal Bail. Application No.342, of 1999, filed by the respondent Syed Abdul Qayyum in Crime No.19 of 1998, registered at ANF Police Station, Karachi on 27-12-1998 in respect of offences under sections 6, 7, 8, 9, 14 and 15 of the Control of Narcotic Substance Act, 1997 (hereinafter to be referred to as the "Act").

2. This Court had issued notice to the respondent, in response whereof Mr. Mir Nawaz Khan Marwat, Advocate, put in appearance.

3. Sub-Inspector Abid Zulfiqar of ANF Police Station registered the abovementioned case stating therein that he received an information from ANF Headquarters about the consignment of S.K. & Company containing 42 cartons, designated for Montreal via Amsterdam, which was kept tinder observation and with the coordination of customs staff of AFU, QIAP, Karachi, it was checked and its seizure memo. was prepared. After completion of legal formalities the said consignment was allowed to proceed. On 27-12-1998, a fax from Neitherland Embassy, Islamabad confirming seizure of 400 Kgs. of Hashish, packed in cartons; was received. The shipment was accompanied with Airway Bill No.074-227-3564, which showed a Pakistani exporter has a firm by the name of S.K. & Company. According to the letter, the shipment was designated for Canada M/s. Bados International, 7316 Somered Montreal Quebec, Canada via Amsterdam. On inquiry from airline and cargo agent it was established that 'co-accused Muhammad Ashraf son of Abdul Sattar and Muhammad Anwar son of Abdul Rah man and other associates, and their gang were involved in the commission of offence by exporting and trafficking 447 Kgs. of Hashish from Karachi to Montreal via Amsterdam, Holland through Shipment Bill No.135918, dated 24-12-1998.

4. In support of the petition, Mr. Naraindas C. Motiani, the learned counsel for the petitioner, contended that the High Court while granting bail to the respondent has not gone through the police record. According to him co-accused Muhammad Anwar and Muhammad Ashraf have implicated the respondent with the commission of offence during interrogation and it was he who managed the shipment of the consignment of the cartons containing Hashish. P.W. Zia-ul-Aziz in his 161 as well as 164, Cr.P.C. statements has also stated that his brother Syed Tawad in the month of November, 1998, at the instance of Muhammad Ashraf Memon, had provided a mobile phone to respondent Syed Abdul Qayyoom, an Assistant Director in FIA. Mr. Motiani argued that this all shows the connection of the respondent with the gang of the drug traffickers and thus, there is a prima facie case against him for the purpose of cancellation of bail: He next argued that section 51(1) of the Act prohibits the grant of bail to an accused person charged with an offence under this Act where the offence is punishable with death. It expressly excludes the provisions of sections 496 and 497, Cr:P.C. He refers to the case of The State through Director, ANF, Karachi v. Mubeen Khan, reported in 2000 SCMR 299 and states that this Court keeping in view the provisions of section 51 of the Act cancelled the bail of respondent allowed by the High Court of Sindh, Karachi, as such the bail of the respondent being on identical footing, may also be cancelled.

5. On the other side, Mr. Mir Nawaz Khan Murwat, the learned counsel for the respondent, vehemently controverted the contentions of the learned counsel for the petitioner and argued that prosecution has failed to bring on record any iota of evidence against the respondent. According to him it is settled principle of law of this Court that the statement of co -accused made during the investigation has got no value at all and such disclosure is not admissible in evidence. On this aspect of the matter he placed reliance on the case of Moula Bux and others v. 'The State and 2 others, reported in 1997 SCMR 292.

6. On the factual aspect Mr. Motiani was unable to show any direct or indirect piece of evidence to connect the respondent with the crime. Admittedly the statements of co-accused recorded by police during investigation are inadmissible in evidence and cannot be relied upon for the purpose of cancellation of bail. Even on its perusal nothing incriminating has been found against the respondent. Providing a mobile phone by Syed Fawad in any case does not connect the respondent with the crime or gang of drug traffickers. In the case of Deputy Director, ANF-(ibid) this Court converted the petition into appeal and cancelled the bail of accused on the ground that respondent had not earned the ground of statutory delay of two years in the conclusion of his trial. Moreover, this Court in the case of Gul Zaman v. The State reported in 1999 SCMR 1271 has elaborately dealt with the application of sections 496, 497 and 498, Cr.P.C. in view of bar contained in section 51 of the Act and it has been unanimously held that despite the provisions contained in section 51 of the Act, the Sessions Court and High Court have the power to grant bail. Even otherwise the order of the High Court is very elaborative and does not merit interference.

7. For the above reasons, the petition does not merit consideration and accordingly the case is dismissed and the leave is refused. Q. M. H. /M. A. K./S-46/S Petition dismissed.