2022 PLP 111 (YLRN)

ABDUL MAALIK GADDI, J.

Through instant bail application, applicants/accused (1) Muhammad Shahzad son of Haji Muhammad Usman and (2) Abdul Hafeez son of Muhammad Bux seek post arrest bail in Crime No.288/ 2019 registered under Sections 269/273/ 337-J/34 of P.P.C. at Police Station Malir Cantt., Karachi. Prior to filing this bail application, applicants/ accused approached to the trial Court for grant of bail, but the same was dismissed vide order dated 12.11.2019.

2. Facts necessary for the disposal of this bail application are that when complainant along with his subordinate staff were on patrolling duty, during patrolling, complainant received spy information that present applicants were selling hazardous/ poisonous material in a shop i.e. Memon Pan Shop, Sadi Town, District Malir, Karachi, and on such information police party reached at the pointed place, arrested them and recovered 27 puries of Rajni and 05 puries of one-to-one. Such Mashirnama was prepared. Thereafter, the applicants were brought at police station and FIR was registered against them.

3. Learned counsel for applicants inter alia contended that applicants/ accused are innocent and have falsely been implicated in this case; that nothing has been recovered from their possession; that the place of incident was populated commercial/residential area but no any independent person was cited from locality to witness the event and all the prosecution witnesses are police officials and subordinates of arresting officer which, is clear violation of section 103, Cr.P.C., that all the offences applied in this case either bailable or their punishment do not fall within the prohibitory clause of section 497, Cr.P.C. except section 337-J of P.P.C., which is, though, non-bailable but for the purpose of bail lesser punishment shall be considered; Therefore, further detention of the applicants would not serve the purpose, as such, they prayed for bail.

4. On the other hand, learned D.P.G. has opposed this bail application on the ground that present applicants were selling hazardous/ poisonous material in the shop, which was injurious to health. The case is at initial stage and if the applicants are allowed bail, certainly, they will repeat the offence.

5. After careful consideration of contentions of learned counsel for the parties, alleged 27 puries of Rajni and 05 puries of one-to-one were recovered. No private witness has been associated in spite of prior spy information received during patrolling, hence the complainant party least could have made an attempt to associate private mashirs either from the place of information or from the place of incident. There is also delay in sending the representative part for chemical examination which (delay) would also be required an explanation by prosecution, hence making a room for further probe.

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 applicants. Since whole case of the prosecution is based upon the evidence of police officials, no doubt the evidence of police officials is as good as private persons, 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 challaned. Present applicants/ accused are no more required for investigation.

7. On perusal of record it appears that in this matter sections 269 and 270 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 applicants was not administered to anybody at the hands of applicants. In this backdrop at this stage, it cannot be said that the applicants are responsible for causing hurt through administration of poisonous material to anybody. No complaint of local people is on record to show that applicants were selling hazardous material. No evidence on record to whom the applicants were selling this hazardous material.

8. Applicants/ accused have been in continuous custody since their arrest and are no more required for any purpose of investigation nor the prosecution has claimed any exceptional circumstance, which could justify keeping the applicants behind the bars for an indefinite period. Moreover, prosecution has not claimed that the applicants are previously involved in same nature of cases. No word of Gutka/ Mawa is appearing in FIR allegedly selling by applicants. 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 applicants 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, applicants have succeeded to bring their case within the purview of subsection (2) of section 497, Cr.P.C., for these reasons, applicants are admitted to post arrest bail subject to furnishing their solvent surety in the sum of Rs.25,000/- (Rupees twenty five thousand only) each 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 applicants/ accused misuse the bail, then trial Court would be competent to cancel the bail of the applicants without making any reference to this Court. ADN/M-52/Sindh Bail allowed.