2022 P Cr (PLP)

AFTAB AHMED GORAR, J.

Through instant bail application, applicant/accused Chanessar Khan Ghanghro seeks pre-arrest bail in Crime No.141/2019 registered at Police Station, Kandiaro District, Naushehro Feroze for offence punishable under sections 269, 170, 273, 337-J, P.P.C.

2. Brief facts of the prosecution case are that on complainant HC Syecl Khair Mohammad Shah lodged FIR on 21.07.2019 at 1400 hours at Police Station, Kandiaro alleging therein that on the day of incident he along with his other Police constables, left Police Station concerned vide roznamcha entry No.10 at 1230 hours in Government Vehicle for the purpose of patrolling within their jurisdiction. During patrolling when they reached at shop of accused situated near Mahessar graveyard where they saw that one person was openly and publically selling the Z-21 Sopari which is dangerous and hazardous to the health of human being, the police party then succeeded to apprehend the said person. On query, he disclosed his name as Chanesar son Mohammad Umar Ghanghro resident of Pacca Ghanghra Taluka Kandiaro. Due to non-availability of private mashirs, the complainant cited PC Mohammad Sharif and PC Rashid Ali Kalhoro as mashirs and conducted body search of apprehended accused and recovered two packets from his possession, the complainant then arrested the said accused for the offence punishable under sections 269, 270, 273, P.P.C. thereafter Police party brought accused and recovered property at Police Station, Kandiaro where complainant lodged FIR against the accused on behalf of State.

3. Learned Counsel for applicant contends that the applicant has falsely been involved in this case by the complainant with mala fide intention and ulterior motives as now a days the tradition to involve the innocent persons in injurious intoxicant is at peak; that all the sections are bailable except 337-J however, the story as narrated in the FIR does not attract to the aforesaid section; that no consumer is shown to have purchased said Z-21 supary from the applicant; that nothing has been recovered from the possession of applicant/accused but alleged recovery has been foisted upon the accused. He further submits that both the mashirs are Police officials and there is no independent person to act as mashir therefore, he prayed for confirmation of bail.

4. Learned Deputy Prosecutor General appearing for the State vehemently opposed for confirmation of bail on the ground that huge quantity of Gutka/Z-21 Suparies which are injurious to health have been recovered from the possession of accused in presence of mashirs. He further contended that as per chemical examiner's report the alleged offence falls under 5 of Food Laws. He prayed that applicant is not entitled for confirmation of bail.

5. I have given anxious consideration towards the arguments advanced by both the learned Counsel and come to the conclusion that keeping the totality of the circumstances in mind, and on a tentative assessment of the facts as alleged, a case for the grant of bail has been made out as it is yet to be determined at the time of trial whether alleged material recovered from the applicant/accused or not or it has been foisted upon the applicant by the Police. Furthermore, the prosecution has failed to point out that any poisonous thing or poison be given to any other person which can cause injurious to a human body, hence the prosecution story is totally false and unbelievable. The learned DPG submits that case of applicant falls under 5 of Food Laws. The section 5 of Food laws read as under; "No person shall directly or indirectly, himself or by any other person, prepare manufacture, keep or store for sale, sell or, offer to sell any food which unsound, unwholesome injurious to health or unfit for human consumption."

6. The punishment provided under section 5 of aforesaid laws which may extend to seven years and shall not less than one year with fine which does not fall within the prohibitory clause of section 497, Cr.P.C. The record further reveals that, both the mashirs are police officials and no private person has been cited as mashirs. In the case, State v. Bashir and others reported in PLD 1997 SC 408, the Honourable Supreme Court has held that requirement of section 103, Cr.P.C., that two members of the public of the locality should be mashirs to the recovery is mandatory unless it is shown by the prosecution that in the circumstances of particular case, it was not possible to have two mashirs from the public. The applicant is regularly attending this Court as well as learned trial Court and there is no allegation of misusing the concession of bail against him therefor, no useful purpose would be met in diverting back the applicant to the learned trial Court for seeking post arrest bail.

7. If the case of possession of Gutka/Z-21 Suparies then first prosecution has to establish the fact that the drugs/intoxicant material were secured from the possession of the accused then the court is required to presume that the accused is guilty unless the accused proves that he was not in possession of such intoxicant material. Therefore, it is necessary for the prosecution to establish that the accused has some direct relationship with the intoxicant material or has otherwise dealt with it. If the prosecution proves the detention of article or physical custody of it then the burden of proving that the accused was not knowingly in possession of the article is upon him.

8. The honourable Supreme Court has restated the law in relation to the grant of pre-arrest in the case reported as Rana Muhammad Arshad v. Muhammad Rafique and another (PLD 2009 SC 427) as follows: "Following is the frame-work within which and the guidelines according to which, the jurisdiction vesting in the High Courts and the Courts of Session is to be exercised:- (a) grant of bail before arrest is an extraordinary' relief to be granted only in extraordinary situation to protect innocent persons against victimization through abuse of law for ulterior motives; (b) pre-arrest bail is not to be used as a substitute or as an alternative for post-arrest bail; (c) bail before arrest cannot be granted unless the person seeking it satisfies the conditions specified through subsection (2) of section 497 of Code of Criminal Procedure i.e. unless he establishes the existence of reasonable grounds leading to a belief that he was not guilty of the offence alleged against him and that there were, in fact, sufficient grounds warranting further inquiry into his guilt; (d) not just this but in addition thereto, he must also show that his arrest was being sought for ulterior motives, particularly on the part of the police; to cause irreparable humiliation to him and to disgrace and dishonour him; (e) such a petitioner should further establish that he had not done or suffered any act which would disentitle him to a discretionary relief in equity e.g. he had not past criminal record or that he had not been a fugitive from law; and finally that, (f) in the absence of a reasonable and a justifiable cause, a person desiring his admission to bail before arrest, must, in the first instance, approach the court of first instance i.e. the Court of Session, before petitioning the High Court for the purpose."

9. The case of the present applicant comes within the parameters laid down by the Honourable Supreme Court. I have therefore, come to the conclusion that keeping the totality of the circumstances in mind, and on a tentative assessment of the facts on hand as alleged, a case has been made out for the grant of bail to the applicant. Accordingly, instant bail application is allowed and interim pre-arrest bail already granted to applicant vide order dated 08.11.2019 is confirmed on same terms and conditions. Bail application stands disposed of. ADN/C-15/Sindh Bail confirmed.