IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

 

Cr. Bail Application No.S-337 of 2021

           

 

Applicant:                                  Akhtiyar, through Mr.Muhammad Farooq Jatoi, Advocate

                                                 

Respondent:                               State through Mr.Khalil Ahmed Maitlo, DPG

 

Date of hearing:                         16.08.2021

 

Dated of order:                           16.08.2021

                                                 

 

O R D E R

 

Zulfiqar Ali Sangi, J:  Applicant/accused Akhtiyar son of Muhammad Shareef Shaikh, seeks his post-arrest bail in FIR No.05/2021, registered at Police Station Agra, under Articles 3/4 Prohibition (Enforcement of Hadd) Order, 1979. His first bail application was declined by the learned 1st Civil Judge & Judicial Magistrate, Gambat, vide order dated 20.02.2021. Subsequently, he approached the Court of Sessions where his bail plea was also declined by learned Additional Sessions Judge Judge-II, Khairpur, vide order dated 28.042021, hence he approached this court by filing present bail application.

2.           Succinctly the facts of the prosecution case are that on 14.02.2021, a police party of Police Station Agra headed by HC Maqsood Akhtar during patrolling, on spy information halted a car at Kurk Shakh at about 1500 hours, a person dismounting from it, fled away, while the present applicant was apprehended and on search of the car, six sacks of hemp (Bhang) each weighing 16 k.g, total 96 K.g hemp were recovered from it.

 3.          Learned counsel for the applicant contended that the recovery proceedings are in violation of section 103 Cr.P.C and the applicant has falsely been implicated by the police; that Article 4 of PEHO is bailable and punishment under Article 3 of PEHO is up to five years, as such the offence does not fall within prohibitory clause of section 497 Cr.P.C, while Article 3 of PEHO has been misapplied by the police, therefore, the applicant is entitled for concession of bail.

4.           Conversely, learned DPG has opposed the grant of bail contending that a huge quantity of 96 K.g hemp has been recovered form the possession of applicant and since the offence is against the society, therefore, it comes within exceptions for refusal u/s 497 Cr.P.C, hence the applicant is not entitled for grant of bail.

5.           I have heard learned counsel for the applicant, learned DPG for the state and have gone through the material available on record with their able assistance.

6.           Admittedly Article 4 of PEHO is punishable up two years and is bailable and punishment provided under Article 3 of PEHO is up to five years as such it does not fall within prohibitory clause of Section 497 Cr.P.C. The Honourable Supreme Court in numerous judgments has held that the bail in cases which do not fall within prohibitory clause of Section 497 is right and its refusal is an exception. Reliance is placed on the case of Tariq Bashir v. The State (PLD 1995 SC 34) , Muhammad Tanveer V. The State and another (PLD 2017 SC 733), Sheikh Abdul Raheem v. The State and another (2021 SCMR 822) and Muhammad Daniyal Farrukh Ansari v. The State (2021 SCMR 557). The Honourable Supreme Court vide order dated: 05-08-2021 in the Case of Muhammad Imran v. The State (Crl.P.860-L/2021) has categorically settled the grounds for the case to fall within the exceptions meriting denial of bail as (a) the likelihood of the petitioner’s abscondence to escape trial; (b) his tampering with the prosecution evidence or influencing the prosecution witnesses to obstruct the course of justice; or (c) his repeating the offence keeping in view his previous criminal record or the desperate manner in which he has prima facie acted in the commission of offence alleged. Learned DPG has not been able to point out any of the grounds to bring the case of applicant in the exceptions for refusal of the bail as settled by the Supreme Court. Moreover, a Division Bench of this court has granted bail, in case where 64 k.g hemp (Bhang) was recovered. Hussainuddin and another v. The State (PLD 1998 Karachi 187).

7.           It is settled principle of law that while deciding the bail plea of accused deeper appreciation of evidence is not permissible and the material is to be assessed tentatively. From the tentative assessment of material available on record as discussed above, the applicant has been able to make out a case of further inquiry into his guilt. Resultantly, this application is allowed and the applicant is granted post arrest bail subject to furnishing his solvent surety in the sum of  Rs.200,000/- (Two Lacs), and PR bond in the like amount to the satisfaction of the trial court.

 

8.           Observations made herein above are tentative in nature and will not cause any prejudice to either party at the trial.

 

9.       Instant Criminal Bail Application is disposed of in the above terms.

 

                                                                             JUDGE

 

Suleman Khan/PA