THE HIGH COURT OF SINDH AT KARACHI

Cr. Bail Application No.1689 of 2019

Applicants                   :           (1) Ubaid son of Asghar and (2) Umair son of Anwar

                                                Through Javed Ahmed Rajput, Advocate

Respondent                 :           The State Through Mr. Abdullah Rajput,

Deputy Prosecutor General Sindh along with

IO ASI Tahir Mehmood of PS Khwaja Ajmer Nagri, Karachi

Date of hearing           :           06.12.2019

Date of Order             :           06.12.2019

For hearing of bail application

ORDER

Abdul Maalik Gaddi, J. – Applicants/ accused seek bail in Crime No.349/2019 registered under Sections 269/270/337-J/34 of PPC at P.S. Khwaja Ajmer Nagri, Karachi. Prior to filing this bail application, applicants/ accused approached to the trial Court for grant of bail, but the same was dismissed vide order dated 08.11.2019.

2.         The allegations against the applicants/ accused are that the police party was on patrolling duty in the area and during patrolling they received spy information about the availability of the present applicants along with absconding accused were available at Service Road near 4-J Bus Stop, Sector 1-A/4, North Karachi. On such information, police party reached at the pointed place and arrested the applicants and recovered from their possession 11 Thelies containing Gutka/ Mawa, whereas co-accused fled away from the spot.

3.         Learned counsel for applicants/ accused argued that the applicants/ accused are innocent and have been falsely implicated in this case; that the place of incident was thickly populated area, even then no private person has been associated as witness in this event; that Section 337-J does not attract in this case as per story narrated in the FIR; that descriptions of recovered property are not mentioned in the FIR; that all the prosecution witnesses are police officials and false allegation cannot be ruled out, therefore, the case of applicants require further inquiry.

4.         On the other hand, learned DPG has opposed this bail application on the ground that applicants were selling banned and hazardous Gutka/ Mawa in evening time, which causes cancer. 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 Gutka/Mawa were recovered. No private witness has been associated despite of the fact that the alleged place from where the said Gutka/ Mawa was recovered was situated in a populated area and it was evening time, hence the complainant party least could have made an attempt to associate private mashirs from the place of incident.

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 official is as good as private person, 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. It is also noted that case has been challaned. Present applicants/ accused are no more required for investigation.

7.         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 were not administered to anybody at the hands of applicants. In this backdrop, it cannot be said that the applicants are responsible for causing hurt through administration of poisonous material to anybody. No evidence on record that applicants were selling the Gutka/Mawa, as no purchaser was found available with the applicants.

8.         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 scales tilt 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.

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 their solvent surety in the sum of Rs.25,000/- (Rupees twenty five thousand 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 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