THE HIGH COURT OF SINDH, CIRCUIT COURT, L.A.R.K.A.N.A.

Criminal Bail No. S-442 of 2024

Applicants:             1. Ravi Kumar son of Hojo Lal

2. Vinesh Kumar son of Toran Lal

through M/s. Abdul Ghani Bijarani and Amanullah Luhur, Advocates.

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

Date of Hearing:    11.09.2024

Date of Order:        11.09.2024

O R D E R

KHADIM HUSSAIN SOOMRO, J.- Through instant Criminal Bail Application, Applicants Ravi Kumar and Vinesh Kumar seek post-arrest bail in the case outcome of F.I.R No.206/2024, registered at Police Station A-Section Kandhkot, District Kashmore at Kandhkot for offence under Sections 3/4 P.E.H.O after their bail plea was declined by the learned Sessions Judge/Special Judge C.N.S, Kashmore at Kandhkot, vide Order dated 03.08.2024.

2.                 Facts, in a nutshell, are that on 17.7.2024, the police party was on patrolling duty when they received spy information that two persons were selling foreign whisky and beer; the raid was conducted, the applicants/accused caught red-handed who disclosed their names to be Ravi Kumar and Vinesh Kumar, the policy party recovered eight different sized cartons of foreign whisky and beer; therefore, the accused persons and the recovered property brought at the police station and F.I.R. was lodged.

3.                 Learned counsel for the Applicants has contended that the applicants/accused are innocent and have been falsely implicated by the police with malafide intention and ulterior motives; that all the PWs are police officials and no independent witness has been associated despite that the place of incident was thickly populated area; that the alleged offence does not fall within prohibitory clause of Section 497 Cr.P.C, that the alleged recovery is foisted upon the applicants/accused. Therefore, he prayed that the Applicants/accused may be enlarged on bail. 

4.                 Learned Deputy Prosecutor General, Sindh, appearing for the State, has vehemently opposed the grant of bail to the applicants/accused on the ground that the names of the Applicants/accused are mentioned in the F.I.R. with specific role of selling foreign whisky and beer, therefore, they are not entitled to the concession of bail.

5.                 I have heard learned counsel for the applicants/accused, learned Deputy Prosecutor General Sindh, and perused the material available on record. 

6.                 Admittedly, the alleged place of incident is near Town Committee Kandhkot, which is in the city of Kandhkot, from where the alleged recovery of whisky bottles had taken place, but the police official does not record or photograph the search, seizure, or arrest procedures. Article 164 of the Qanun-e-Shahadat, 1984, explicitly allows the use of evidence obtained through modern devices or techniques. Article 165 of the same law supersedes all other laws in this regard. The police officers are generally equipped with cell phones containing built-in cameras. Instant case modern devices and cameras have not been used. 

7.                 In the case of  Zahid Sarfraz Gill V/S  The State (2024 S C M R 934), the apex court has observed that Section 25 of the C.N.S. Act 1997, exempts the application of Section 103 of the Code of Criminal Procedure, 1898, which mandates the presence of two or more respectable local inhabitants during a search. Nevertheless, it is unclear why the police and Anti-Narcotics Force (A.N.F.) members do not record or photograph the search, seizure, or arrest procedures. Article 164 of the Qanun-e-Shahadat, 1984, explicitly allows the use of evidence obtained through modern devices or techniques, and Article 165 of the same law supersedes all other laws in this regard. In narcotics cases, prosecution witnesses are typically personnel from the Anti-Narcotics Force (A.N.F.) or police officers, who are generally equipped with cell phones containing built-in cameras. Given that the witnesses in such cases are predominantly government officials and there are usually few witnesses, trials often experience unnecessary delays. Consequently, the accused frequently seek bail initially from the trial court; if denied, they escalated their request to the High Court, and if still unsuccessful, they approach the Supreme Court. The use of mobile phone cameras by the police and A.N.F. to document the search, seizure, and arrest could serve as substantial evidence. Such recordings or photographs would help substantiate the presence of the accused at the crime scene, demonstrate possession of the narcotic substances, and validate the procedures of search and seizure. Moreover, this practice could mitigate false allegations against A.N.F. or police officials of fabricating evidence for ulterior motives.

8.                 The applicants are booked in Articles 3 and 4 of Prohibition/Enforcement of Hadd Order, 1979. Section 3 of the said Order applies when the intoxicants import, export, transport, manufacture or process any intoxicant. But in the instant case, prima facie, there is no evidence in this regard. The first proviso of Article 4 of the Order provides that a non-Muslim citizen of Pakistan can keep a reasonable quantity of intoxicating liquor for the purpose of using it as a part of their religious ceremonies. It is to be determined at the time of trial whether the said liquor was possessed by the applicants and, if so, whether the same was part and parcel of the ceremony or not. The aforesaid Article is reproduced as under:-

"Provided that nothing contained in this Article shall apply to a non Muslim foreigner or non-Muslim citizen of Pakistan who keeps in his custody at or about the time of ceremony prescribed by his religion a reasonable quantity of intoxicating liquor for the purpose of using it as a part of such ceremony."

9.                  Article 4 of the Order provides a punishment extent to two years, which does not fall within the prohibitory clause of Section 497 Cr.P.C. In such cases, the grant of bail is a rule, whereas refusal is exceptional. No exceptional circumstances exist merited to the decline of the instant bail application. In the case of Muhammad Tanveer V. The State and another (PLD 2017 SC 733), the Supreme Court of Pakistan has expressed astonishment and sadden that bail is routinely denied in situations and in offences that don't come within the restriction provided in section 497 of the Cr.P.C on dubious justifications and the same was considered as an unnecessary financial burden on the general public. The relevant ratio of the judgment is reproduced as under:- 

"We are shocked and disturbed to observe that in cases of this nature, not falling within the prohibition contained in section 497, Cr.P.C., invariably grant of bail is refused on flimsy grounds. This practice should come to an end because the public, particularly accused persons charged for such offences are unnecessarily burdened with extra expenditure and this Court is heavily taxed because leave petitions in hundreds are piling up in this Court and the diary of the Court is congested with such like petitions. This phenomenon is growing tremendously, thus, cannot be lightly ignored as precious time of the Court is wasted in disposal of such petitions. This Court is purely a constitutional Court to deal with intricate questions of law and Constitution and to lay down guiding principle for the Courts of the country where law points require interpretation.

10.                 The Apex Court, in the 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, the Apex 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 at hand, the prosecution has failed to establish any of the above grounds, meriting the denial of the applicants' application. The Apex Court also settles 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. 

11.                It is settled law that if an accused is wrongly released on bail. After trial, he will be found guilty of the alleged charge, then again he will be taken into custody, but after a prolonged trial, if the prosecution fails to establish its case against the accused, the golden days spent by the accused in jail and incarceration faced by the accused cannot be repaired with.

12                 In view of the above, instant bail application is allowed; applicants Ravi Kumar and Vinesh Kumar are admitted to bail subject to their furnishing solvent surety in the sum of Rs.50,000/- (Rupees Fifty Thousands only) each and P.R Bonds in the like amount to the satisfaction of the learned trial Court.

13.                Needless to mention here, 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.

Judge

Abdul Salam/P.A