ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

Cr. B.A. No.S-1339 of 2014.

DATE ORDER WITH SIGNATURE OF JUDGE

12-01-2015.

Mr. Aijaz Awan, advocate for applicants.

Mr. Shahid Ahmed Shaikh, A.P.G.

SALAHUDDIN PANHWAR, J.-Through instant application, applicants seek post arrest bail in Crime No.141 of 2014, under Article (s) 3 & 4 Prohibition (Enforcement of Hadd), Order, 1979, registered at Police Station Tando Jam.

2. Precisely relevant facts are that on 27.10.2014, complainant along-with his subordinate staff was on patrolling, when they reached at Zari Colony, they received spy information that one Mir Magsi along-with his fellows is preparing liquor and selling the same. On such information, complainant party reached the pointed place and apprehended three persons, whereas remaining persons ran away after seeing the police party. Police also recovered one blue colour cane and other articles, which were found, filled with liquor. The apprehended persons disclosed that escaped accused was Mir and with whom they used to sell the liquor. Thereafter, some quantity of wine was taken from all articles and sealed separately for chemical analysis. Property and accused were brought at Police Station. FIR was registered against the applicant. After usual investigation they were sent up for trial.

3. Learned counsel for the applicants inter alia contends that applicants have been falsely implicated by police in order to show their efficiency; all prosecution witnesses are police personnel; recovery allegedly effected from the applicants is liquor; chemical report is delayed; despite place of incident is a thickly populated area no independent witness has been cited as witness; applicants have no previous criminal record; punishment for the alleged offence as provided by statute can be up to 05 years; the same does not fall within the prohibitory clause; since last 02 months applicants are in jail and they are not further required for any investigation.

4. Learned State Counsel halfheartedly opposed this application on the ground that this is a crime against society, however he concedes that there is no criminal history of this applicants.

5. After careful consideration of contentions of learned counsel for the parties and meticulous examination of available record, admittedly alleged contraband narcotics is liquor (desi wine); despite having prior information complainant/police party did not bother to pick/associate any private mashir/witness from the locality, which too is thickly populated area; the place of recovery is not alleged to be belonging to the applicants; there is a delay in sending the representative part for chemical examination which would also require explanation from the prosecution hence opens a room for further probe; there is no iota of evidence that at the time of raid applicant(s) were busy in preparing contraband liquor and even otherwise, the maximum punishment as provided by statute for alleged offence, in instant case may, at the most, come up to 05 years. The position, being so, makes it clear that instant case does not fall within the prohibitory clause of sub-section (1) of Section 497, Cr.P.C. Moreover, prosecution has not claimed that the applicants are previously involved in same nature of the case(s). The applicants have been in continuous custody since last two months and are no more required for any purpose of investigation nor the prosecution has claimed any exceptional circumstance (s) which could justify keeping the applicants behind the bars for an indefinite period. Appearance of name of one in an FIR lodged for an offence against society by itself would not sufficient to keep him behind the bars for an indefinite period but other circumstances like punishment for offence, previous record, requiring of accused by police (Investigation agency), likelihood of repeating the offence on release shall be decisive in deciding bail plea (s). This is so, because the law does not believe to keep one behind the bars on allegation but restriction on guaranteed liberty could operate where circumstances justifies so or it is in betterment of society. In the instant case, no exceptional circumstances are claimed by prosecution hence objection of offence, being one against society, is of no worth to decline bail to applicants / accused who, otherwise, appears to have made out a case for bail.

06. Keeping in view the above given circumstances, prima facie, applicants have succeeded to bring their case within the purview of subsection 2 of section 497 CrPC, for this reason, they are admitted to post arrest bail subject to furnishing solvent surety in the sum of Rs.100,000/-(Rupees one lac) each and PR bond in the like amount to the satisfaction of trial Court.

Bail application stands disposed of.

JUDGE