IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA.
1stCrl. Bail Application No.S-459 of 2024
Date Order with signature of Hon'ble Judge
1. For orders on office objection.
2. For hearing of Bail Application.
Mr. Saeed Ahmed Panhwar, advocate for the applicant.
Mr.Ali Anwar Kandhro, Addl. Prosecutor General.
Date of Hearing : 24.09.2024.
Date of decision : 24.09.2024.
O R D E R
Khadim Hussain Soomro, J.-The applicant Muhammad Ramzan Shahwani seeks post-arrest bail in Crime No. 243 of 2024, registered at Police Station Mehar, for an offence under sections 8 of the Sindh Prohibition of Preparation, Manufacturing, Storage, Sale and Use of Gutka and Manpuri Act, 2019,His application seeking bail was dismissed by the learned 1st Additional Sessions Judge, Mehar, on 12.08.2024.
2. The F.I.R., in this case, was registered on behalf of the State by S.I.P. Ghulam Mustafa Solangi on 24.7.2024. He recorded therein that a police party led by him was on normal patrol duty, during which, on a tip-off, they intercepted a HENO Cargo Vehicle near Old Toll Plaza on Mehar-Dadu Indus Highway; during a search of the vehicle, they secured 40 packets of intoxicated Aadab Supari, 52 small bags/Pachkas of green colour and 63 small bags/Pachkas of mix colour, total 113 small bags/Pachkas, all containing the mixture being used in preparation of Gutka Supari. After drawing and sealing the samples at the spot and preparing a memo of arrest and recovery, the driver of the vehicle, namely Muhammad Ramzan Shahwani, was taken to the police station along with the recovered property, including the vehicle, where the instant case was registered.
3. I have heard the learned counsel for the applicant as well as the learned Addl. P.G. for the State and have perused the record.
4. From the perusal of the record, it appears that the alleged recovery was affected by the back seat of the vehicle and not by the physical possession of the applicant/accused. This question will be determined by the trial court after recording the evidence. The investigation of the case has been completed, and Challan has already been submitted before the court of competent jurisdiction; as such, the custody of the accused applicant is no longer required for further investigation by the police.
5. Section 8 ibid provides punishment upto three years, and lesser punishment is provided for one year, which does not come within the ambit of the prohibitory clause of section 497, Cr.P.C. It is settled law by now that while deciding the question of bail, a lesser sentence is to be considered. In Shahmoro's case 2006 YLR 3167,this court granted bail to the accused while considering the lesser sentence of the offence. The relevant portion of the order is reproduced as under:-
"I have taken into consideration the respective 'arguments advanced by the learned Advocates for the parties and perused the record. Section 395, P.P.C. provides that whoever commits Dacoity shall be punished with imprisonment for , life, on rigorous imprisonment for a term which shall nor be less than four years nor more than ten years and shall also be liable to fine. The sentence not less than four years was incorporated by Ordinance III of 1980 on 3rd February, 1980 which make the intention of the legislature very clear that when the case is registered under section 395, P.P.C. the Court cannot award sentence less than four years and can award sentence not more than ten years. Respectfully following the principle laid down in the case of Arshad Mehmood (supra) and Muhammad Akhtar (supra) the applicants are admitted to bail subject to his furnishing surety in the sum of Rs.50,000 and P.R. bond in the like amount each to the satisfaction of trial Court. However, the learned trial Court is directed to expedite the proceedings and dispose of the matter as early as possible".
6. As discussed above regarding the penalties associated with the alleged offence for which the applicant is charged, the maximum punishment is three years, while the minimum is one year. Additionally, the applicant is subject to a fine not less than two hundred thousand,which even does not fall within the prohibitory clause of Section 497 Cr.P.C and the grant of bail in these cases is the rule while refusal is an exception, as has been held by the Supreme Court of Pakistan in cases of Tarique Bashir V. State (PLD 1995 SC 34), The pertinent ration of the order is reproduced as under:-
497. When bail may be taken in case of non-bailable offence.---(1) When only person accused of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years:
7. That in the case of Muhammad Tanveer V. State (PLD 2017 SC 733), the honourable Supreme Court of Pakistan has expressed astonishment and sadden that bail is routinely denied in situations where an offence doesn'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, in term of their food and transportation to the courts. 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.
8 . The Supreme 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 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 at hand, the prosecution has failed to establish any of the above grounds, meriting the denial of the applicant's bail application. The Honourable 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.
09. From the tentative assessment of the record, I am of the view that the applicant has made out his case for further inquiry at this stage. Resultantly, this bail application is allowed, and the applicant is granted bail subject to his furnishing solvent surety in the sum of Rs: 500,00/= (Rupees fifty thousand only) and P.R. bond in the like amount to the satisfaction of the learned trial Court.
10. Needless to mention, 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
Qazi Tahir PA/*