2022 P Cr (PLP)

ABDUL MAALIK GADDI, J.

Having remained unsuccessful in obtaining his release on bail from trial Court in Crime No.385/2019 registered under sections 269/272/337-J of P.P.C. at P.S. Docks, Karachi. Now the applicant Abdul Aziz is seeking his release on bail in the said crime through instant bail application.

2. Facts necessary for disposal of this bail application are that on 07.10.2019, when complainant ASI Malik Mumtaz Hussain was patrolling along with his subordinate staff and during patrolling in the area, they received spy information that at the edge of the sea, passenger jetty kala pani, Fisheries, a person was selling Gutka, which was injurious to health. On this information, police party reached at the pointed place and recovered 230 small packets/puries of Gutka/Mawa from the possession of applicant, as such he was arrested in presence of Mashirs and then applicant was brought at P.S. where present case was registered.

3. Learned counsel for applicant/accused argued that the applicant accused is innocent and has been falsely implicated in this case; that applicant/accused is a registered merchant and running a general store and cold drink shop with the name and style of Aziz Store; that first bail application of applicant was dismissed due to non-submission of challan; that all the prosecution witnesses are police officials and false allegation cannot be ruled out, therefore, the case of applicant requires further inquiry. He lastly prayed that applicant is entitled for concession of bail on the grounds raised by him.

4. On the other hand, learned DPG has opposed this bail application on the ground that applicant was selling banned and hazardous Gutka/Mawa in day-time, which causes cancer. The case is at initial stage and if the applicant is allowed bail, certainly, he will repeat the offence.

5. After careful consideration of contentions of learned counsel for the parties, alleged 230 small packets/puries of Gutka/Mawa was recovered. No private witness has been associated despite of the fact that the alleged place from where the said Gutka/Mawa was recovered was situated in a populated area and it was a day-time, hence the complainant party least could have made an attempt to associate private mashirs from the place of incident.

6. It is noted that whole case of the prosecution is based upon the evidence of police officials, therefore, no question does arise for tampering the same at the hands of applicant. Since whole case of the prosecution is based upon the evidence of police officials, no doubt the evidence of police official is as good as private person, but when whole case is based upon evidence of police officials, therefore, their evidence are required to be minutely scrutinized at the time of trial, whether the alleged incident has taken place in a fashion as stated in FIR or otherwise. It is also noted that case has been challenged. Present applicant/accused is no more required for investigation.

7. On perusal of record it appears that in this matter sections 269 and 272 of P.P.C. are bailable and their punishment also do not fall within the prohibitory clause of section 497, Cr.P.C. However, as far as the applicability of section 337-J of P.P.C. in the case in hand is concerned, though the same is not bailable, however, alleged hazardous/poisonous substance recovered from the possession of applicant was not administered to anybody at the hands of applicant. In this backdrop at this stage, it cannot be said that the applicant is responsible for causing hurt through administration of poisonous material to anybody. Nothing on record that applicant was selling the Gutka/ Mawa, as no evidence for any purchaser is on record.

8. Applicant has been in continuous custody since his arrest and is no more required for any purpose of investigation nor the prosecution has claimed any exceptional circumstance which could justify keeping the applicant behind the bars for an indefinite period. Moreover, prosecution has not claimed that the applicant is previously involved in same nature of cases. Nothing on record that applicant is previously convicted in any case. Therefore, keeping in view the peculiar facts of instant case as well as minimum punishment, which normally may be considered while dealing with the bail plea, therefore, I am of the view that scale tilts in favour of the applicant for grant of bail. In this regard, I am supported with the case of Shehmoro v. The State reported in 2006 YLR 3167.

9. Keeping in view the above given facts and circumstances, prima facie, applicant has succeeded to bring his case within the purview of subsection (2) of section 497, Cr.P.C., for this reason, applicant is admitted to post arrest bail subject to furnishing his solvent surety in the sum of Rs.50,000/- (Rupees fifty thousand only) and PR bond in the like amount to the satisfaction of trial Court.

10. Needless to mention here that any observation if made in this order is tentative in nature and shall not effect the merits of the case. It is made clear that in case if during proceedings the applicant/accused misuses the bail, then aria Court would be competent to cancel the bail of the applicant without making any reference to this Court. ADN/A-33/Sindh Bail allowed.