THE HIGH COURT OF SINDH AT KARACHI

Cr. Bail Application No.1544 of 2019

For hearing of Bail Application.

Applicant                    :           Haji Malook son of Muhammad Hassan Zour

                                                Through M/s. Khwaja Muhammad Azeem & Sadia

                                                Khatoon, Advocates

Respondent                 :           The State Through Mr. Abrar Ali Khichi,

Additional Prosecutor General Sindh

Date of hearing           :           13.11.2019

Date of Order             :           13.11.2019

ORDER

Abdul Maalik Gaddi, J. – Having remained unsuccessful in obtaining his release on bail from trial Court in Crime No.126/2019 registered under Sections 269/270/337-J of PPC at P.S. Darro District Sajawal. Now the applicant Haji Malook is seeking his release on bail in the said crime through instant bail application.

2.         Brief facts of the prosecution case as per FIR are that on 06.10.2019, complainant ASI Abdul Aziz of PS Darro left P.S. under roznamcha entry No.07 at 1200 hours along with his subordinate staff for patrolling in the area, during patrolling when they reached at link road leading to Abral. They received spy information that present applicant was selling banned “Gutka” in his cabin openly, which was injurious to health. Accordingly at about 1330 hours on the said date, they reached at pointed place and found present applicant standing in cabin and one plastic sack/ katta was lying in front of him. The complainant apprehended present applicant along with sack/ kata and found 215 puries of duly prepared “Gutka” therein. Hence he was arrested. After conducting body search recovered cash amount of Rs.200/-. The applicant disclosed that he had obtained the recovered banned Gutka from Sajjad Ali for selling purpose, out of which he had sold 10 puries. The complainant prepared Mashirnama of arrest, search and recovery in presence of mashirs HC Muhammad Amin and PC Bashir Ahmed on spot. Then he brought the applicant with recovered property at P.S. and lodged FIR against him on behalf of State.

3.         Mr. Khwaja Muhammad Azeem, learned counsel for the applicant inter alia contended that applicant/ accused is innocent and has falsely been implicated in this case; that nothing has been recovered from his possession; that the place of incident was thickly populated commercial/ residential area but no any independent person was cited from locality to witness the event and all the prosecution witnesses are police officials and subordinates of arresting officer which is clear violation of section 103 CrPC, that all the offences applied in this case either bailable or their punishment do not fall within the prohibitory clause of Section 497 CrPC except Section 337-J of PPC, which is, though, non-bailable but for the purpose of bail lesser punishment shall be considered; that complainant of the case is also investigating officer, therefore, according to him, under these circumstances, investigation carried out by the complainant cannot be safely relied upon and it is yet to be determined by the trial Court during trial whether the present applicant is involved in a case which is injurious to health of the people or otherwise. Therefore, further detention of the applicant would not serve the purpose, as such, he prayed for bail. In this regard, he has relied upon the cases of (1) Nazeer Ahmed vs. The State reported in PLD 2009 Karachi 191, (2) Qaloo vs. The State reported in 1996 PCrLJ 496 and (3) Muhammad Altaf vs. The State reported in 1996 PCrLJ 440.

4.         On the other hand, Mr. Abrar Ali Khichi, learned APG has opposed this bail application on the ground that applicant is involved in selling banned ‘Gutka’ in his cabin openly, which was injurious to health. The case is at initial stage and if the applicant is allowed bail, certainly, he will repeat the offence.

5.         After careful consideration of contentions of learned counsel for the parties, alleged 215 puries of prepared Gutka was recovered. No private witness has been associated in spite of prior spy information received during patrolling, hence the complainant party least could have made an attempt to associate private mashirs either from the place of information or from the place of incident. There is also delay in sending the representative part for chemical examination which (delay) would also be required an explanation by prosecution, hence making a room for further probe.

6.         It is noted that whole case of the prosecution is based upon the evidence of police officials, therefore, no question does arise for tampering the same at the hands of applicant. Since whole case of the prosecution is based upon the evidence of police officials, no doubt the evidence of police officials is as good as private persons, but when whole case is based upon evidence of police officials, therefore, their evidence are required to be minutely scrutinized at the time of trial, whether the alleged incident has taken place in a fashion as stated in FIR or otherwise.

7.         It is also noted that case has been challaned. Present applicant/ accused is no more required for investigation. It is also noted that in this matter complainant ASI Abdul Aziz of PS Darro lodged the FIR, but as per police paper he has also investigated the matter. Since in this matter complainant also acted as investigating officer, although the evidence of complainant/ police official, who also becomes I.O. is admissible in evidence but for the safe administration of justice, his evidence is also required to be minutely scrutinized at the time of trial, as the same is not corroborated by any independent evidence.

8.         On perusal of record it appears that in this matter Sections 269 and 270 of PPC are bailable and their punishment also do not fall within the prohibitory clause of Section 497 CrPC. However, as far as the applicability of Section 337-J of PPC in the case in hand is concerned, though the same is not bailable, however, alleged hazardous/ poisonous substance recovered from the possession of applicant was not administered to anybody at the hands of applicant. In this backdrop at this stage, it cannot be said that the applicant is responsible for causing hurt through administration of poisonous material to anybody.

9.         Applicant has been in continuous custody since his arrest and is no more required for any purpose of investigation nor the prosecution has claimed any exceptional circumstance which could justify keeping the applicant behind the bars for an indefinite period. Moreover, prosecution has not claimed that the applicant is previously involved in same nature of cases. Nothing on record that applicant is 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 tilts 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.

10.       Keeping in view the above given facts and circumstances, prima facie, applicant has succeeded to bring his case within the purview of subsection (2) of section 497, CrPC., for this reason, applicant is admitted to post arrest bail subject to furnishing his solvent surety in the sum of Rs.10,000/- (Rupees Ten Thousand only) and PR bond in the like amount to the satisfaction of trial Court.

11.       Needless to mention here that any observation if made in this order is tentative in nature and shall not effect the merits of the case. It is made clear that in case if during proceedings the applicant/ accused misuses the bail, then trial Court would be competent to cancel the bail of the applicant without making any reference to this Court.

       JUDGE

asim/pa