THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Bail Application No.S-29 of 2023

Applicant:            Shabir Ahmed through Mr. Muhammad Ali Memon, Advocate.

Respondent:        The State

Through Mr. Aitbar Ali Bullo, Deputy Prosecutor General, Sindh.

Date of hearing:  06.02.2023

Date of Order:     06.02.2023

O R D E R

ZULFIQUAR ALI SANGI, J.- Through instant Criminal Bail Application, applicant/accused Shabir Ahmed son of Nazir Ahmed Mangi seeks post arrest bail in Crime No. 03/2023, offence under Section 8 of the Sindh Prohibition of Preparation, Manufacturing, Storage, Sale and Use of Gutka and Manpuri Act, 2019 of the Police Station Stuart Gang. Prior to this, he filed such application, but the same was turned down by the Court of 5^th Additional Sessions Judge, Shikarpur vide order dated 16.01.2023; hence he filed instant Criminal Bail Application.

2.                The facts of the incident are mentioned in the bail application and the copy of F.I.R. is also attached with the bail application, hence, needs not to reproduce the same here.

3.                Learned counsel submits that the applicant/accused is innocent and he has been falsely implicated in this case by the complainant with mala fide intention and ulterior motives; that there is violation of Section 103 Cr.P.C. for the recovery proceedings and with malafide intention police has registered the F.I.R.; that the recovery has not been effected from the applicant, however, the same has been foisted and the offence does not fall within the prohibitory clause of section 497 Cr.P.C. Lastly, learned counsel prayed for grant of bail to the applicant/accused.

4.                On the other hand, learned Deputy Prosecutor General has opposed the grant of bail to the applicant on the ground that the offence for which the applicant is allegedly involved is a heinous one effect the large number of society, therefore, applicant is not entitled for concession of bail.

5.                Heard arguments of the learned counsel for the parties and have perused the material available on record. The F.I.R. was registered under section 8 of the Sindh Prohibition of Preparation, Manufacturing, Storage, Sale and Use of Gutka and Manpuri Act, 2019, for which the punishment is provided upto three years and the lesser punishment is provided upto one year, which does not fall within the prohibitory clause of section 497 Cr.P.C and grant of bail in such cases is rule 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). Further, the Honourable Supreme Court in case of Muhammad Imran V. The State (PLD 2021 SC-903) has formulated the grounds for the case to fall within the exception 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. Further, Honourable Supreme Court held in the said order that the prosecution has to show if the case of the petitioner falls within any of these exceptions on the basis of the material available on the record. In the case in hand, the prosecution has failed to establish any of the above ground meriting denial of the application of the applicant. It is also settled by the Honourable Apex Court that deeper appreciation of the evidence is not permissible while deciding the bail application and the same is to be decided tentatively on the basis of material available on the record.

6.                Learned counsel for the applicant/accused has made out case for grant of bail under sub-section (2) of section 497 Cr.P.C.  Accordingly, the bail application is allowed and the applicant/accused is admitted to bail subject to his furnishing solvent surety in the sum of Rs.50,000/- and P.R. Bond in the like amount to the satisfaction of the learned Trial Court.

7.                Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the learned Trial Court while deciding the case of either party at trial.

                                J U D G E

Manzoor