2011 SCMR 165 (PLP)

SAIYED SAEED ASHHAD, J.

This petition for leave to appeal assails the order of the Lahore High Court, Lahore dated 9-4-2008 in Criminal Miscellaneous No.8415/CB-2007 whereby bail after arrest allowed to the petitioner by the learned trial Court vide order dated 29-9-2007 was recalled and petitioner was ordered to be remitted to custody.

2. The petitioner was apprehended at Lahore Airport by the Drug Enforcement Cell, Lahore Airport, on 30-8-2007 while he was to leave for Abu Dhabi and during search, heroin weighing 1.530 kilograms was recovered from his suit case which was carried by one Ishtiaq Ali son of Hamid Ali. On interrogation the said Ishtiaq Ali disclosed that the said suit case belonged to the petitioner and was handed over by the petitioner to him. On such fact F.I.R. was recorded and a case under the Control of Narcotic Substances Act, 1997 was registered against the petitioner. The petitioner moved a bail application before the trial Court who granted him bail.

3. The main factor which weighed with the trial Court in granting bail to the petitioner has been mentioned in paragraph 5 of the order and it will be appropriate to reproduce the relevant portion therefrom, as under: "The present accused Muhammad Salman Shafique has been implicated in this case on the statement of the said co-accused. The available record shows that the said heroin was not recovered from the present accused/petitioner and he was also not present at the place of recovery when the said recovery was effected from Ishtiaq Ali. It is also noticed that during investigation no narcotics substance was recovered from the possession of the accused/petitioner, Muhammad Salman Shafique. The name of the accused was disclosed by one of the co-accused and it is yet to be determined by the trial Court after recording of evidence as to whether the accused has committed the alleged offence and this makes the case of the accused/petitioner that one of further inquiry."

4. However, a learned Division Bench of the Lahore High Court on the application of the Narcotics Force for cancellation of the bail held to the contrary and observed that there was sufficient material/evidence available on record to connect the petitioner with the possession, recovery and the possibility of taking the same out of Pakistan and as the prosecution succeeded in establishing the prima facie case against him, therefore, he was not entitled to the concession of bail and accordingly recalled the bail order.

5. We have heard the arguments of Mr. Aftab Ahmad Bajwa, learned Advocate Supreme Court for the petitioner and Sheikh Izhar-ul-Haq, learned Advocate Supreme Court appearing for respondent and have pursued the available record.

6. Attention of Sheikh Izhar-ul-Haq, learned Advocate Supreme Court for respondent was drawn to the observation made by the High Court with regard to the legality and value of the statement of co-accused which had been heavily relied upon by the High Court as a material piece of evidence to connect the petitioner with the alleged offence. He was also asked to point out the material evidence referred to by the High Court to the effect that it was the petitioner who had brought the narcotic substances from Peshawar to Lahore and further that how the fact that the petitioner used to live along with co-accused Ishtaq Ali in South Africa would be a circumstance to connect him with the alleged recovery of heroin and make him liable under the Control of Narcotic Substances Act, 1997.

7. Mr. Aftab Ahmad Bajwa, learned Advocate Supreme Court for the petitioner vehemently assailed the order of the High Court and submitted that the same was absolutely in violation and ignorance of the principles laid down for cancellation of bail granted to an accused and for prima facie connecting an accused with the offence charged with. He further submitted that High Court had placed reliance on material/statement of co-accused which in no circumstance or occasion can be used as evidence and relied upon for deciding the culpability of an accused. He went to the extent that the order of High Court is based on conjectures, surmises and observations absolutely contrary to law.

8. After taking into consideration the respective arguments advanced by the learned counsel there can be no denying the fact that the trial Court had allowed bail to the petitioner after proper examination and appreciation of the facts and the evidence available on record and rightly concluded that the matter required further inquiry so as to prima facie connect the accused with an offence punishable with death or imprisonment for life or 14 years and the case was of further inquiry entitling the petitioner to the concession of bail. No exception can be taken to the observation so made by the trial Court. However, it is unfortunate to state that no such thing can be said about the order of the High Court as the same is in contravention/violation of the principles embodied in section 497(5), Cr.P.C. and the guidelines laid down by this court relating to the cancellation of bail and appears to be an arbitrary and whimsical order.

9. For the foregoing reasons this petition is converted into appeal and is allowed. The order of the High Court is set aside and that of the learned trial Court is restored resulting in restoration of the concession of bail in favour of the petitioner on the same terms and conditions embodied in the order of the trial Court and would not be required to furnish fresh surety. Leave petition converted into appeal and appeal allowed. N.H.Q./M-41/SC Bail granted.