THE HIGH COURT OF SINDH AT KARACHI
Cr. Bail Application No.1627 of 2019
Applicants : (1) Shakeel Ahmed son of Mumtaz Shah & (2) Naimatullah son of Perdil Khan Pathan
Through M/s. Muhammad Ramzan, Nisar Ahmed Narejo & Chaudhry M. Saeed-uz-Zaman, Advocates
Respondent : The State Through Mr. Abdul Qadeer Memon,
Deputy Prosecutor General Sindh
Date of hearing : 20.11.2019
Date of Order : 20.11.2019
For hearing of Bail Application.
ORDER
Abdul Maalik Gaddi, J. – Having remained unsuccessful in obtaining their release on bail from trial Court in Crime No.171/2019 registered under Sections 269/270/337-J of PPC at P.S. Makli. Now the applicants Shakeel Ahmed and Naimatullah are seeking their release on bail in the said crime through instant bail application.
2. Brief facts of the prosecution case as per FIR are that on 22.10.2019, complainant ASI Ilimuddin of PS Makli left P.S. under roznamcha entry No.18 at 1900 hours along with his subordinate staff for patrolling purpose in the area. During patrolling he received spy information that two persons in white colour corolla car No.ANG-242 were coming towards Thatta along with the prohibited Gutka, main puries and suparies. After receiving such information, they came at By-pass Chowk Makli and started checking of the vehicle coming from Karachi side. It was 0700 hours when they saw the car of present accused in which two persons were sitting. The said car was stopped and complainant found two persons sitting on front seats, whereas 05 plastic sacks/ kattas lying on back seat of the car. The complainant checked the diggi of car and found 08 other plastic sacks/ katta in the same. On inquiry the person sitting on driving seat disclosed his name as Shakeel Ahmed son of Mumtaz Shah, resident of North Karachi and the person sitting beside him disclosed his name as Naimatullah son of Pir Dil Pathan, resident of Lyari, Karachi. The complainant opened the sack/ katta and found 15 packets of JND main puries containing 110 puries in each packet and 05 packets of JM puries containing 100 in each packet. The complainant found Choora of Suparies in 05 bags lying on back seat of the car. The complainant weighed the Choora found in bags which became total 325 kg. The complainant took some quantity of Choora from each bag and separately sealed in paper bags. He also separately sealed puries taken from each packet of main puries. Thereafter he prepared such Mashirnama of arrest, search and recovery in presence of mashirs HC Ghulam Mustafa and PC Muhammad Azeem on spot. Then he brought the accused and case properties at P.S. Makli, where he lodged FIR against the accused on behalf of State, hence this bail application.
3. Learned counsel for applicants inter alia contended that applicants/ accused are innocent and have falsely been implicated in this case; that nothing has been recovered from their possession; that the place of incident was 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 applicants are involved in a case which is injurious to health of the people or otherwise. Therefore, further detention of the applicants would not serve the purpose, as such, they prayed for bail.
4. On the other hand, learned DPG has opposed this bail application on the ground that applicants were bringing prohibited Gutka, main puries and suparies towards Thatta, which was injurious to health. The case is at initial stage and if the applicants are allowed bail, certainly, they will repeat the offence.
5. After careful consideration of contentions of learned counsel for the parties, alleged huge quantity of Gutka, main puries and suparies 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 applicants. 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 applicants/ accused are no more required for investigation. It is also noted that in this matter complainant ASI Ilimuddin of PS Makli 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, yet for the safe administration of justice, his evidence is also required to be minutely scrutinized at the time of trial, as the same was 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 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.
9. Applicants have been in continuous custody since their arrest and are no more required for any purpose of investigation nor the prosecution has claimed 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 tilts in favour of the applicants 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, 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 their solvent surety in the sum of Rs.100,000/- (Rupees One Lac only) each 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 applicants/ accused misuse the bail, then trial Court would be competent to cancel the bail of the applicants without making any reference to this Court.
JUDGE
asim/pa