ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Cr. Bail Application No. S-322 of 2020

 

 

            Applicants                 :           Muhammad Riaz and Muhammad Zaman

                                                            Through Mr. Juneed Akram, Advocate

Respondent               :           The State

through Mr. Shafi Muhammad Mahar, DPG

            Date of hearing         :           13.07.2020

            Date of Order            :           13.07.2020

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O R D E R

ADNAN-UL-KARIM MEMON, J:              The applicants are seeking post-arrest bail in connection with Crime No. 44/2020, for offences under Section 7/8 Ghutka Manpuri, Act, 2019, registered with P.S. Bhiria City, District Naushero-Feroze

2. The applicants are stated to have been found in transporting 25 bags (Kattas) containing 28 kg Manpuri Gudkas’ Suparies which was seized. Samples were drawn; F.I.R. was lodged by an officer under Section 7/8 Ghutka Manpuri, Act, 2019. Investigation was carried out and all codal formalities were fulfilled. Final charge-sheet was submitted against the applicant in the trial Court.  Their bail plea was discarded by learned 1st Additional Sessions Judge, Naushahro-Feroze, vide order dated 05.06.2020 on the premise that offence is against society.

3.         Learned Counsel for the Applicants has mainly contended that the applicants are innocent and have falsely been implicated in this case by the police; that the alleged recovery is neither from the exclusive nor physical and constructive possession of the applicants but the same is foisted upon them later on. Learned Counsel further contended that under Section 14 sub-Section (i) of the Act, 2019 provides that an officer not below the rank of Sub-Inspector of Police or equivalent is authorized to search, arrest and take further steps the aforesaid crime but in the present crime Assistant Sub Inspector has carried out the whole exercise which is prohibited under the law; that the offence with which the applicants stand charged does not fall within the prohibition contained under Section 497 Cr.P. He lastly prayed for grant of bail.

4.         On the other hand, learned Deputy Prosecutor General, Sindh opposed for grant of bail on the ground that huge recovery has been effected from the possession of the applicants and this offence is against society at large. He supported the impugned order of dismissal of their bail application by the trial Court.

5.         I have heard learned Counsel for the Applicants as well as learned Deputy Prosecutor General and have minutely perused the material available on record.

6.         It appears from the record that alleged hazardous/ poisonous substance recovered from the alleged possession of applicants was not administered to anybody at the hands of applicants. In this backdrop at this stage, it cannot be said that the applicants are responsible for causing hurt through administration of poisonous material to anybody. Nothing on record that applicants were selling the Gutka/ Mainpuri/suparies, as no evidence for any purchaser is on record. Applicants have been in continuous custody since their arrest and the prosecution has failed to justify any exceptional circumstance which could justify keeping the applicants behind the bars for an indefinite period. Moreover, prosecution has not claimed that the applicants are previously involved in same nature of cases. Nothing on record that applicants are previously convicted in any case. Therefore, keeping in view the peculiar facts of instant case as well as minimum punishment, which normally may be considered while dealing with the bail plea, therefore, I am of the view that scale inclines in favour of the applicant for grant of bail. In this regard, I am supported with the case of Shehmoro vs. The State reported in SBLR 2007 Sindh 249.

9.         Keeping in view the above given facts and circumstances, prima facie, applicants have succeeded to bring their case within the purview of subsection (2) of section 497, CrPC., for this reason, applicants are admitted to post arrest bail subject to furnishing his solvent surety in the sum of Rs.100000/- (Rupees one lac only) each and PR bond in the like amount to the satisfaction of trial Court.

10.       Needless to mention here that any observation if made in this order is tentative in nature and shall not prejudice the case of either party in trial. It is made clear that in case if during proceedings the applicants misuse the bail, then trial Court would be competent to cancel the bail of the applicants without making any reference to this Court.

 

                                    JUDGE

Faisal Mumtaz/PS