ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Bail Appln. No. S-33 of 2023

Applicant:                           Sanaullah Soomro,   

Through Mr. Mazhar Ali Mangan,  Advocate  

The State                            Through Mr. Aitbar Ali Bullo,                                                 Deputy Prosecutor General.

Date of hearing:                  06-02-2023

Date of order:                      06-02-2023

ZULFIQAR ALI SANGI, J.- Through instant criminal bail application, the applicant/accused Sanaullah Soomro seeks post arrest-bail in Crime No.02/2023, registered at Police Station Madeji, District Shikarpur, for the offence U/S 8 of Sindh Prohibition of Preparation, Manufacturing, Storage, Sale and Use of Gutka and Manipur Act, 2019, after rejection of his bail plea by the learned trial court vide order dated 21.01.2023.

2. The facts of the prosecution case are that the applicant/accused was arrested by the patrolling police party of P.S Madeji, headed by A.S.I. Imtiaz Ali Soomro and recovered 500 grams of power/mixture of Gutka. Mashirnama of arrest, personal search and recovered powder and recovered money was prepared at the spot and recovered property were brought at police station and accused was booked in the instant case.

3. Learned counsel for the applicant/accused submits that the applicant/accused is innocent and has falsely been implicated in this case by the complainant; that he has not committed any offence as alleged in the F.I.R. Learned counsel for the applicant further submits that the punishment provided under Section 8 of Sindh Prohibition of Preparation Manufacturing Storage Sale & Use of Gutka, Mainpuri Act, 2019 is three years hence, does not exceed limits of prohibitory clause of Section 497(i) C.P.C. He further submits that applicant is the first offender, therefore, he deserves leniency. He next submits that in such like cases grant of bail is a rule while refusal is an exception. He therefore, prays that applicant may be granted bail. 

4. Learned DPG for the state opposed the grant of post arrest bail on the ground that 500 grams of Gutka has been revered from the possession of applicant/accused; that recovered Gutka powder is injurious to human health; he lastly prayed that applicant is not entitled for grant of post-arrest bail therefore, application may be dismissed.

5. Heard learned counsel for the applicant, learned Additional Prosecutor General and perused the material available on the record.

6. The record reflects that complainant on spy information arrested the applicant/accused and recovered the alleged Gutka powder from the possession of applicant/accused. The police have ample time to arrange the private persons to associate them as witnesses in the recovery proceedings but the complainant was failed to do so, which makes the recovery doubtful.

7. Prima facie, the punishment U/S 8(1) as provided by the Act, 2020 is three (3) years which is entailing punishment for less than ten years and does not fall within the prohibitory clause of Section 497 Cr.PC 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 applicant falls within any of these exception 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.

8. In view of above, it appears that the applicant/accused has made out a case for grant of post-arrest bail in view of subsection (2) of Section 497 Cr.P.C. Accordingly, instant criminal bail application is allowed. The applicant/accused is admitted on post-arrest bail subject to furnishing solvent surety in the sum of Rs.50,000/- (Rupees Fifty thousand) and P.R bond in the like amount to the satisfaction of trial court.

9. 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

Abdul Salam/P.A