IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Bail Application No.S-824 of 2021

Applicant: Saffar, through

Mr.Manzoor Ali Chachar, Advocate

State: Through Mr. Zulfiqar Ali Jatoi,

Additional prosecutor General

Date of hearing: 14.01.2022

Date of decision: 14.01.2022

O R D E R

Zulfiqar Ali Sangi, J:- Through this bail application, the applicant/accused Saffar son of Fateh Muhammad Pathan, seeks post-arrest bail in Crime No.193/2021, registered at police station Abad, for offence under section 8 of Main Puri Act, 2019. Earlier his bail application was dismissed by learned Additional Session Judge (H) Sukkur vide order dated 20.12.2021.

2. On 01.12.2021 complainant ASI Abdul Majeed along with his other staff on spy information arrested the applicant/accused near Arain and secured from his mazda truck 200 bags of Gutka, Chalia and Suparies, weighing 2000 kilograms. He could not produce the registration documents of the said mazda truck therefore the same was also taken in possession u/s 550 Cr.P.C.

3. Learned Counsel for the Applicant, at the very outset, submits that the applicant is innocent and was involved by the police with malafide intentions; that all the witnesses are police officials and are sub-ordinate to the complainant; that no private mashir was associated in the recovery proceedings; that alleged articles were foisted upon the applicant and nothing was recovered from his possession; that section 8 of the Gudika and Main Puri Act, 2019 is punishable up to three years hence the offence does not fall within the prohibitory clause of section 497 Cr.P.C, hence the applicant is entitled for grant of bail.

4. Learned APG while opposing the bail application submits that the applicant/accused has committed the offence which is heinous one and against the society; that mere on the ground that the offence not falling within prohibitory clause of section 497 Cr.P.C no one is entitle for grant of bail automatically; that huge quantity of hazardous material was recovered from the possession of the applicant therefore the applicant is not entitled for the concession of bail.

5. I have heard learned Counsel for the Applicant as well as DPG for the State and have gone through the material available on record with their able assistance.

6. Record reflects that alleged recovery was affected from the populated area and the complainant has advance information regarding presence of the applicant at the pointed place but no private person was associated as witness or mashir either from the place of incident or from the place of information. All the witnesses are police officials; therefore, there is no apprehension of tempering the evidence. The investigation of case is completed and the challan has been filed before the court having jurisdiction, therefore, the custody of applicant is not required for further investigation.

7. Punishment provided in section 8 of the said act is up to 03 years but shall not less than 01 year and fine of rupees two lacs. It is settled by now that while deciding the question of bail lesser sentence is to be considered. In Shahmoro's case 2006 YLR 3167 while considering the lesser sentence of the offence this Court granted bail to the accused. As has been discussed above in respect of the punishment provided for the alleged offence for which the applicant is charged, the same provided maximum punishment up to 03 years which even does not fall within the prohibitory clause of section 497 Cr.P.C and grant of bail in these case is right while refusal is an exception as has been held by Honourable Supreme Court of Pakistan in cases of Tarique Bashir V. State (PLD 1995 SC 34), Zafar Iqbal V. Muhammad Anwar (2009 SCMR 1488), Muhammad Tanveer V. State (PLD 2017 SC 733) and Shaikh Abdul Raheem V. The State etc (2021 SCMR 822).

8. From the tentative assessment of the record the applicant has make out his case for further inquiry. Resultantly, this application is allowed and the applicant is granted bail subject to furnishing his solvent surety in the sum of Rs: 50000/= (Fifty thousands) and PR bond in the like amount to the satisfaction of the trial court.

JUDGE

Suleman Khan/PA