2018 PLP 75 (YLRN)

ADNAN-UL-KARIM MEMON, J.

The Applicants namely Abdul Hameed Shaikh and Danish Gul Chandio are seeking Post Arrest Bail in a case Crime No.41/2017, under section 285, 286, P.P.C. and Section 3/4 Prohibition (Enforcement of Had) Order 1979, registered at Police Station Taluka, District Larkana. Applicants moved bail application twice in above crime before learned Judicial Magistrate-Ill, Larkana and the same were dismissed vide order dated 15.4.2017 and 28.4.2017 respectively. Thereafter, Applicants moved bail applications twice before learned Sessions Judge, Larkana which were also dismissed vide order dated 19.4.2017 and 20.5.2017 respectively.

2. The gist of allegations against the Applicants according to the FIR is that on 12.04.2017 ASI Abdul Sattar Khatyan of Police Station Taluka, Larkana alongwith subordinate staff i.e. PC-Oshaq Ahmed and PC-Hakim Ali were on patrol duty. During patrolling, when they reached Indus Highway Larkana, they received spy information about one Blue Car carrying certain objectionable material. Upon seeing the said car, they signaled to stop, search was conducted and found one person sitting on the rear seat of car with packets of explosives comprising of 1400 boxes in 4 sacks and three cartons containing 60(20 bottles in each carton) tin bottles of beer/alcohol respectively. The aforesaid recovered items were sealed and secured under Mushirnama. On inquiry, the driver of car disclosed his name as Abdul Hameed son of Akbar Ali Shaikh, resident of Shaikh Muhalla, Kamber. The person who was sitting on rear seat of car disclosed his name as Danish Gul son of Ali Gul Chandio, resident of Kamber Ali Khan. Accused persons and recovered property were brought at Police Station and FIR was lodged under Section 285,286 of PPC and Section 3/4 Prohibition (Enforcement of Had) Order, 1979 on behalf of the State.

3. Investigating Officer of the case prepared Mushirnama of place of incident, recorded statements of prosecution witnesses, interrogated the Applicants, got conducted chemical examination of recovered alcohol, obtained its report and submitted Charge Sheet against the Applicants on 20.04.2017.

4. Learned counsel for the Applicants argued that Applicants have falsely been implicated in the subject crime by the police with mala fide intention by concocting a story due to enmity. It is further asserted that Applicants are students who have no criminal record. They further added that nothing was recovered from the possession of Applicants and the /alleged recovery is foisted upon them. They next contended that there is /a violation of section 103 Cr.P.C. as no private person has been cited as witness from the Area where the alleged recovery was made despite the fact that place of incident is a very thickly populated area. Therefore, the case requires further inquiry to ascertain the guilt of the Applicants. They further argued that offences are not punishable with death or imprisonment for life. They next contended that section 3 Prohibition (Enforcement of Hadd) Order,1979 is not applicable in the present case, section 4 of Prohibition of (Enforcement of Hadd) Order,1979 is punishable up to two years and offences under Section 285 and 286 PPC are bailable, therefore Applicants are entitled for the concession of Bail as matter of right. The learned counsel for the Applicants in support of their contentions has placed reliance upon the case of Shah Nawaz and others v. The State (2008 SCMR 1436), Muhammad Ummer v. The State (PLD 2004 SC 477), Saeed Ahmed v. The State (1996 SCMR 1132), Munawar Hussain Talat v. The State (2005 YLR 1215)and Muhammad Siddiq v. The State (1988 PCr.LJ 947).Per learned counsel in the light of the aforesaid case law the punishment provided for the alleged offences is less than three years, which becomes bailable. Therefore, the case of Applicants does not fall within the prohibitory clause of section 497(1) of Cr.P.C. Learned counsel further asserted that alleged recovered case property i.e. tin bottles of beer/alcohol were sent for chemical analysis after considerable delay of five days without any plausible explanation. Therefore, the Chemical Examination Report has lost the presumption of authenticity and cannot be considered at bail stage.

5. Learned Addl. Prosecutor General for the State has opposed the grant of bail and argued that Applicants were arrested at the spot while transporting 1400 boxes of explosives packed in 4 sacks and three cartons containing 20 each tin bottles of ::,eer/ alcohol. He next argued that Chemical Examination Report and statements of witnesses fully supported the prosecution case. He next contended that Applicants have been charged with offences punishable under Section 3/4 Prohibition (Enforcement of Hadd) Order, 1979 read with sections 285 and 286, P.P.C. which are of serious nature. He next argued that Applicants are charged with allegations of transport and possession of explosive material and 60 tin bottles of beer/Alcohol containing 6.5 % V/V Ethyl Alcohol in huge quantity. He next contended that Prosecution has collected sufficient incriminating evidence against the Applicants and if the bail is granted the Applicants will continue to commit similar criminal activities causing harm to the public at large. Therefore, the Applicants are not entitled to the concession of bail. In support of his contentions he relied upon the case of IMTIAZ AHMED and others v. THE STATE (PLD 1997 SC 545). He further added that learned Trial Court rejected bail applications of the Applicants twice on merits vide order dated 15.4.2017 and 28.4.2017 respectively, as well as learned Sessions Court, Larkana vide respective orders dated 19.4.2017 and 20.5.2017.

6. I have heard learned counsel for the Applicants and learned Addl. P.G. for the State, perused the material available on record and case law cited at the Bar.

7. I am conscious of the fact that while deciding a bail application, 1 this Court has to consider the allegations made in the FIR, statements /recorded under section 161, Cr.P.C., nature and gravity of charge, other incriminating material against the accused, legal pleas raised by the accused and the relevant law.

8. Record reflects that Applicants have been arrested red-handed with 1400 boxes of explosive material packed in total 4 sacks and sixty tin bottles of beer/Alcohol. Per Chemical Examination Report, the aforesaid material/parcel contains 6.5% V/V as Ethyl Alcohol. The recovery of above specified explosive substance and alcohol was duly witnessed by police officials. The perusal of record does not reflect any ostensible reason on the part of police which could indicate false implication of the Applicants. Therefore, police official are as good witnesses as any other person.

9. Insofar as the plea taken by the learned counsel for the Applicants with respect to non-association of private witnesses is concerned, the complainant has explained the same in the FIR that incident took place at odd hours of the night. And, plea of enmity is a factual controversy which cannot be looked into at bail stage, as deeper appreciation of I; evidence is not required to be considered at bail stage because only tentative assessment of the record is to be made.

10. Prima facie the offence falls under Section 3 and 4 Prohibition;. (Enforcement of Hadd) Order, 1979 read with section 285 and 286, P.P.C. and section 3 is punishable up to five years imprisonment, which are of serious nature. Apparently, sufficient incriminating material has been collected by the police against the Applicants.

11. It is well settled principle of law that an offence which does not fall/within the prohibitory clause of section 497(1), Cr.P.C. does not become a bailable offence automatically. Therefore, if the circumstances warrant bail can be refused even in respect of offences not falling under the prohibitory clause of section 497(1), Cr.P.C.

12. The case law cited by the learned counsel for the Applicants are distinguishable from the facts and circumstances of the present case.

13. In view of the above, I am of the opinion that Applicants have failed to make out a case for grant of bail at this stage. Accordingly, the instant bail application is dismissed.

14. The findings mentioned above are tentative in nature which shall not prejudice the case of either party at the trial stage. However, the learned Trial Court is directed to record evidence of the material witnesses within a period of two months where after the Applicants will be at liberty to move fresh bail application before the learned Trial Court on fresh ground, if they so desire.

15. Above are the reasons of short order dated 06.6.2017. WA/A-89/Sindh Bail refused.