ORDER-SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Bail Appln. No. S- 45 of 2021.

Date of hearing

Order with signature of Judge

29.03.2021.

          Mr. Saeed Ahmed B. Bijarani, Advocate for applicants.

          Mr. Muhammad Noonari, Deputy Prosecutor General.

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Zulfiqar Ali Sangi, J-   Through this application, applicants Muhammad Azhar Shahzad and Hussain Bux are seeking their release on post-arrest bail in Crime No.02/2021, registered at P.S A-Section Kandhkot (District Kashmore @ Kandhkot), under Article 3 & 4 of the Prohibition (Enforcement of Hadd) Order, 1979. Earlier, applicants filed bail application before learned trial Court i.e. Civil/ Family Judge & Judicial Magistrate, Kashmore @ Kandhkot, which was dismissed vide Order dated 18.01.2021, then, they moved similar application to leaned Sessions Judge, Kashmore @ Kandhkot, who too dismissed the same vide his Order dated 25.01.2021.

          The case of prosecution is that the applicants were found in possession of 36 bottles of wine by a police party headed by H.C Muhammad Bachal Malik of P.S A-Section Kandhkot, who was patrolling alongwith his subordinates and in result of spy information reached pointed place; apprehended applicants and recovered aforesaid wine.

          Learned counsel for applicants mainly contended that, the applicants are innocent and have falsely been implicated in this case by the police with malafide intention just to show efficiency to their high-ups. He further submitted that two police officials are shown as mashirs, though the alleged incident is said to have taken place at very busy place; therefore, their evidence cannot be safely relied upon. Per learned, ingredients of Section-3 Prohibition (Enforcement of Hadd) Order 1979, do not stand attracted in the present case, as neither any person has been cited to be purchaser on spot, nor it is alleged in the F.I.R that the accused were found selling the alleged wine. He further contended that, the both the sections applied in the F.I.R do not fall within prohibitory clause of Section 497 Cr.P.C. and in such cases grant of bail is rule and refusal is an exception, but there are no exceptional circumstances for refusal of bail. Learned counsel lastly submitted that, the challan against the applicants has already been submitted; they are no more required for investigation and their further detention in jail would not serve any purpose, therefore, he has prayed for grant of bail to the applicants. In support of his arguments learned counsel has relied upon case of Zafar Iqbal v. Muhammad Anwar and others (2009 SCMR 1488), Rafaqat Ali v. The State (1999 P.Cr.L.J 924), Imran Masih v. The State (2009 P.Cr.L.J 795), Nazim Hussain and others v. The State (2005 P.Cr.L.J 602), Abdul Sattar v. The State through S.I/ SHO (2012 P.Cr.L.J 1924), Nasrullah v. The State (2014 MLD 1500) and Muhammad Tanveer v. The State and another (PLD 2017 Supreme Court 733).

          On the other hand learned D.P.G, opposed the grant of bail to the applicants on the ground that a huge quantity of wine has been recovered from possession of the applicants; that the applicants are resident of another province, therefore, there is chance of their absconsion; that entire wine was sealed for its examination and report is in positive and the offence with which the applicants are charged badly affects society, therefore, the applicants are not entitled for grant of bail.

          Heard learned counsel for the parties and perused the record. As per case of prosecution, allegedly the police recovered wine from a car in which applications were traveling when they reached near Grid-Station Police-Picket but no any independent person has been cited as witness or mashir in the case. There is no proof of selling of alleged wine by the accused person. The factum of selling of wine is not mentioned in FIR. The prosecution for the purpose of proving charge of selling of intoxicant/ wine is bound to produce purchaser, but in this case, the prosecution has not done so; however it has been mentioned in F.I.R only that accused persons disclosed on enquiry that they were going to sale the wine. The charge against the applicants that they were carrying wine would fall within the provision of Article 4 of said ordinance and is punishable for two years R.I or with whipping not exceeding 30 strips. No doubt, the evidence of the police officials is as good, as other witnesses, but when the whole case rests upon sole evidence of police officials, their evidence requires deep scrutiny at trial. The investigation of the case has been completed, and all the prosecution witnesses in this case are police officials, therefore, there is no apprehension of tampering with the evidence on the part of applicants. The perusal of the F.I.R further reflects that all the Sections applied therein do not fall within prohibitory clause of Section 497 Cr.P.C and in the cases not falling within prohibitory clause of Section 497 Cr.P.C., the grant of bail is rule and refusal is an exception, as has been held by the Hon’ble Apex Court in its numerous judgments. As regards to the apprehension of absconsion of applicants being belonging to another province heavy surety can be obtained and the same ground is not to be considered to reject the bail application in view of other facts and circumstances of the case, where applicants are otherwise entitled for concession of bail

          Accordingly, in view of the above position the instant application is here by allowed and applicants are admitted to bail upon their furnishing solvent surety in the sum of Rs.100,000/- (One hundred thousand rupees) each and P.R bonds in the like amount to satisfaction of trial Court.

                                                                JUDGE

Ansari/*