PLJ 2020 Cr.C. (Lahore) 300
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Control of Narcotic Substances Act, (XXV of 1997), S. 9(c)--Post arrest bail--Grant of--Reocvery of 15-KG Heroin--Accused riding on double cabin vehicle, on checking handing over a suit case and admitted that it contains heroin--Heroin alongwith suit case weighed 21.500 kilograms--Complainant took the accused and heroin police station and where all proceedings were conducted in the presence of pw’s--Heroin powder on weighting came to 15-kilograms, out of which 20-grams powder were separated for sample--No recovery memo regarding alleged recovered narcotics was prepared rather the accused as well as case property were taken to police station wehre necessary documentation was don--As per contents of FIR, petitionerwas involved in smuggling of narcotics operating a net work but on the next day, no request was made by I.O. for his physical remand--Peittioner a vocal political leader of opposition party, this aspect of case could not be ignored as political victimization in our country is an open secret--Bail allowed. [Pp. 302, 303, 304 & 305] A, C, D & E
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Second bail petition--Withdraw of first bail petition--maintained--Second bail petition on fresh ground--First bail petition was withdrawn at the very outset without arguing the case on merits--Withdrawal simplicitor does not bar second bail petition.
[P. 303] B
Criminal Procedure Code, 1898 (V of 1898)--
----S. 497--Bail--Seriouseness of allegation is not a ground for refusal of bail if on merits it is found that prosecution’s case is doubtful as benefit of doubt always goes to the accused even at bail stage.
[P. 305] F
M/s. Syed Zahid Hussain Bukhari, Ahsan Bhoon Azam Nazeer Tarar Mian Hafeez-ur-Rehan, Farhad Ali Shah and Syed Ali Muhammad Zahid Bukhari, Advocates for Petitioner.
M/s. Rana Inaam Amin Minhas, Chaudhry Ahtasham-ul-Haq, Malik Muhammad Irfan, Rao Zaigham Ali and Danish Mashkoor Siddique, Special Prosecutors for A.N.F.
Mr. Tariq Majeed, Deputy Director (Law) and Aslam Inspector A.N.F. with record.
Date of hearing: 23.12.2019.
PLJ 2020 Cr.C. (Lahore) 300
Present: Ch. Mushtaq Ahmad, J.
Rana SANAULLAH KHAN--Petitioner
versus
STATE and another--Respondents
Crl. Misc. No. 70510-B of 2019, decided on 23.12.2019.
Order
Petitioner Rana Sanaullah Khan has approached this Court seeking post-arrest bail in a case registered vide FIR No. 47 dated 01.07.2019 under sections 9(c)/15/17 of Control of Narcotic Substances Act, 1997 read with Sections 186/189/225/353 PPC with Regional Director, Anti Narcotic Force, Lahore.
2. As per prosecution case contained in FIR, an information was received by Aziz Ullah, Deputy Director (Operations), Regional Directorate, Anti-Narcotics Forces, Lahore that present petitioner, Rana Sanaullah Khan, Member of National Assembly was involved in smuggling of narcotics and would come with huge quantity of narcotics in his Toyota Land Cruiser Jeep V.8 Bearing No. BF-0601 (Sindh) alongwith his personal squad. A raiding party headed by complaint was constituted consisting of police officials whose names and designations are mentioned in the body of FIR. The raiding party at about 01:00 p.m. started supervising the vehicles/cars coming on motorway entering in Lahore at Ravi Toll Plaza, Lahore. At about 03:25 p.m., a Toyota Land Cruiser mentioned above alongwith VIGO double cabin Bearing No. FH-225/Islamabad of black colour reached. Both the vehicles were stopped. Three persons in each vehicle were found sitting. They disclosed their names as mentioned in the FIR. In the presence of witnesses, Rana Sanaullah Khan on asking of raiding party, handed over a suitcase of blue colour and admitted that it contained ‘Heroin’ which was taken into possession. In the meanwhile, gunmen of the petitioner started grappling with Anti-Narcotics Force staff and attempted to rescue Rana Sanaullah Khan forcibly, however petitioner, Rana Sanaullah Khan and his gunmen were dis-armed by the raiding party. ‘Heroin’ alongwith suitcase was weighed which came to 21.500 Kilograms. In the meanwhile, private persons passing in their vehicles started gathering and apprehending breach of peace, complainant took the accused alonwith ‘Heroin’ and arms recovered from them to Regional Directorate, A.N.F., Lahore where all the proceedings were conducted in the presence of the witnesses. ‘Heroin’ powder recovered from suitcase on weighing came to 15 Kilograms, out of which 20 grams of ‘Heroin’ powder was separated for preparation of sample to be sent to Chemical Examiner and remaining ‘Heroin’ was secured through an-other sealed parcel. Arms recovered from the accused were also secured through recovery memos. Vehicles were also taken into possession and the instant case was registered.
3. Learned counsel representing the petitioner argued that false case was registered for political victimization as petitioner being a vocal leader of opposition was openly criticizing the policies of sitting Government; that co-accused of the petitioner were grnated post-arrest bail by learned trial Court which order was not challenged by the prosecution and on the same set of evidence present petitioner was refused bail by learned trial Court; that proceedings at the place of recoveries were not conducted rather on prosecution’s own showing petitioner and his co-accused were taken to Regional Director, A.N.F. Lahore at a distance of 22 Kilometers from Ravi Toll Plaza, Lahore and all necessary documents were prepared at Police Station which act of prosecution/officials of Anti-Narcotics Force makes the whole prosecution case doubtful; that after registration of this case, Electronic as well as Print Media openly criticized the registration of case which is evident from clippings of Daily Newspapers and that story as narrated by the prosecution in the FIR on the face of it is implausible. Lastly argued that in the given circumstances case for grant of post-arrest bail was made out. Learned counsel for petitioner relied on cases titled as Tahir Khan vs. The State (2019 MLD 361), Abdul Basit vs. The State and others (2018 SCMR 1425) Muhammad Ashraf vs. The State (2019 PCr.LJ Note 134) Ashiq Ali vs. The State (2018) PCr.LJ 225), Shaukat Ali vs. The State and others (2017 PCr.LJ 1020), The State through Deputy Director Anti-Narcotic Force, Karachi vs. Syed Abdul Qayyum (2001 SCMR 14), Ikram-ul-Haq vs. Raja Naveed Sabir and others (2012 SCMR 1273), Muhammad Ali vs. The State, (2012 YLR 1060), The State through Advocate General Khyber Pakhunkhwa vs. Abdul Sattar (2012 YLR 2352), Ishaq Ahmad vs. The State through ANF Police Station Airport Road, Gilgilt (2017 PCr.LJ 522), Muhammad Farooq Khan vs. The State (2007 PCr.LJ 89), Gulab Din vs. The State, (2013 PCr.LJ 1160), Janib Ali Zardari vs. The State (2014 YLR 632), Ziarat Khan vs. The State (2010 MLD 1908) and Jamal-ud-Din alias Zubair Khan vs. The State (2012 SCMR 573).
4. Conversely, learned Special Prosecutor for ANF associated by other colleagues contended that first bail petition filed by the petitioner before this Court was withdrawn on the ground that petitioner wanted to file bail petition before learned trial Court on fresh ground, which ground having been agitated before trial Court was rejected and present petition on the grounds already agitated in the first petition was not maintainable; that huge quantity of contraband ‘Heroin’ was recovered from exclusive possession of the petitioner against whom complainant and other officials had no enmity or ill-will and they had no occasion to falsely implicate the petitioner in a case of serious nature; that most of the contentions raised by learned counsel for the petitioner pertain to domain of deeper appreciation which is not permissible at bail stage; that offence allegedly committed by the petitioner was punishable upto Death penalty and Section 51 of Control of Narcotic Substances Act, 1997 creates a bar to grant of bail in cases of extreme penalty; the learned trial Court has considered all grounds agitated and there is sufficient material available on record which connects the petitioner with commission of alleged offence; that alleged offence falls within prohibitory clause, hence case for grant of bail was not made out. Learned Special Prosecutor for A.N.F. relied upon cases titled as Anti-Narcotics Force through its Regional Director/Force Commander, A.N.F. Rawalpindi vs. Qasim Ali (2019 SCMR 1928), Asfandyar and another vs. Kamran and another (2016 SCMR 2084), Ayub Masih vs. The State (2019 MLD 30).
5. Arguments heard. Record perused.
6. First of all I would like to dispose of objection raised by learned Special Prosecutor for A.N.F regarding maintainability of this petition. It is submitted that petition in hand is second in number and earlier moved by the petitioner (Criminal Miscellaneous No. 57571-B of 2019) was disposed of as withdrawn on the ground of approaching the Court of first instance on fresh ground which ground having been turned down by the trial Court second petition on the same grounds was not maintainable. However, on this point, learned counsel representing petitioner has drawn attention of this Court to the order dated 03.10.2019 which shows that petition was withdrawn at the very outset without arguing the case on merits. Petition was not withdrawn after arguing the matter at some length, rather it was withdrawal simplicitor. Proposition is by now well settled that withdrawal simplicitor does not bar second petition on the same grounds, hence objection raised by learned Special Prosecutor for A.N.F. is turned down.
7. Coming to the merits of the case, it has been noticed after going through the contents of FIR and other material available on record with able assistance of learned counsel for the parties that raiding party headed by Aziz Ullah, Deputy Director (Operations), Lahore was constituted after receiving prior information about arrival of the petitioner at Ravi Toll Plaza, Lahore. As per FIR, members of raiding party were, Aziz Ullah complainant, Imtiaz Ahmad, Assistant Director, Nauman Ghous, Muhammad Aslam and Ahsan Azam, Inspector, Anjum Shakeel, Fida Ali hassan, Sub-Inspectors, Toufiq Ahmad, Muhammad Younas, Head Constables, Ahmad Aftab, Waseem Mukhtar, Mudassar Hussain, Muhammad Aslam, Muhammad Asif, Farooq Ashraf, Waseem Akram, Touseef and Muhammad Adnan, Constables, Shahbaz Anjum, Head Constable, Muhammad Ishfaq and Imam Bakhsh, C.D, who were twenty one in number. Petitioner alongwith his gunmen, (five in number) was stopped at Ravi Toll Plaza, Lahore and all of them were disarmed by the raiding party. It is mentioned in FIR that gunmen of the petitioner started grappling with members of raiding party in order to rescue the petitioner forcibly but they were overpowered and disarmed. Thereafter, a suitcase was found lying in the vehicle and on weighing, it came to 21.500 kilograms but said suitcase alongwith petitioner and his gunmen as well as vehicles was brought at Police Station, Regional Directorate A.N.F. Lahore and proceedings were conducted at said police station including preparation of recovery memos and sealed parcels etc. Sample parcel of only 20 grams out of 15 kilograms ‘Heroin’ was prepared for sending to the Office of Chemical Examiner. It is admitted position in this case evident from the record of prosecution that at the place of recovery i.e. Ravi Toll Plaza, Lahore no recovery memo regarding alleged recovered narcotics was prepared rather the accused as well as case property were taken to police station where necessary documentation was done. Explanation furnished regarding non-preparation of documents at the place of recovery was that people passing in their vehicles started gathering at Ravi Toll Plaza, Lahore due to which accused as well as case property alongwith vehicles were brought to police station. In the presence of raiding party consisting of more than twenty members there was hardly an occasion not to conduct proceedings at the place of recovery. So explanation furnished for not conducting proceedings at the spot was neither plausible nor convincing. Generally, in cases of recovery of narcotics, proceedings at the place of recovery are conducted in order to ensure fairness and transparency in the proceedings so that doubts may not be entertained by the public regarding action taken by the Investigating Agency.
8. It is also worth noticing that as per contents of FIR, present petitioner was involved in smuggling of narcotics operating a network in Faisalabad and Lahore but when accused were produced before learned Court on the next day no request was made by the Investigating Officer for grant of physical remand of the accused in order to investigate about network allegedly operating under the supervision of present petitioner in Faisalabad and Lahore which indicates that the Investigating Agency was not interested in unearthing the activities of the petitioner regarding smuggling of narcotics. Investigating Officer had simply requested the Court to send the accused to jail on judicial remand. Generally, Investigating Agency in order to unearth involvement of the accused in such like cases request for physical remand. That course was not adopted by the Investigating Agency for the reasons best known to them.
9. Learned counsel for petitioner also argued that case was registered for the reasons that petitioner was a vocal Member of Opposition Party and was criticizing the policies of incumbent government and on that account he was put behind the bars. Though such argument at bail stage is not attached much weight for the reason that deeper appreciation at the stage of bail is not permissible nor desirable. However, in the context of petitioner being a vocal political leader of Opposition Party, this aspect of the case could not be ignored as political victimization in our country is an open secret. Law is also well settled that seriousness of allegation is not a ground for refusal of bail if on merits it is found that prosecution’s case is doubtful as benefit of doubt always goes to the accused even at bail stage. Incarceration of accused before conviction in cases of doubtful nature is never approved by the Courts. Lapses in the prosecution case noted above are visible on surface of record like non-preparation of recovery memos at the place visible on of recovery, non-investigation regarding involvement of petitioner in running a network of smuggling of narcotics and sending only 20 grams of contraband out of total quantity of 15 kilograms ‘Heroin’ allegedly recovered from possession of petitioner do indicate prima facie that guilt of the petitioner needs further probe and his case calls for further inquiry. Co-accused of the petitioner were granted post-arrest bail by the trial Court in this case which order has not been challenged by the prosecution.
10. In the light of discussion made above and reasons recorded, I am of the view that a case for grant of post-arrest bail to the petitioner is made out. Resultantly, this petition is allowed and petitioner is directed to be released on bail subject to his furnishing bail bonds in the sum of Rs. 10,00,000/- (one million), with two sureties each in the like amount to the satisfaction of learned trial Court.
(K.Q.B.) Bail allowed
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