IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Bail Application No.S-583 of 2019

 

Date

               Order with the signature of Judge

           

                             For the hearing of the main case.

 

17-01-2020

Mr. Noor Muhammad Memon, Advocate for Applicants

Mr. Khalil Ahmed Maitlo, DPG

          -.-.-.-.-.-.-.-.-.-.

                   

O R D E R

 

Zulfiqar Ali Sangi, J:            Through the instant application, applicants/accused Muhammad Ayoob son of Kher Muhammad Bungulzai Brohi and Muhammad Rizwan son Muhammad Naeem Qureshi seek pre-arrest bail in FIR No.246/2019, registered at Police Station Moro, under Sections 269, 272, 273 & 337-J PPC. Applicants/accused approached for bail to the learned Additional Session Judge, Moro, which was declined vide order dated 28.10.2019 after such applicants approached this court for the same relief.

 

2.           Briefly, facts of the prosecution case are that on 20.07.2019 at 2230 hours, complainant ASI Niaz Ahmed Abbasi of CIA Centre Naushahro Feroz lodged F.I.R. at PS Moro stating therein that he along with his staff each namely PC Ali Asghar Rind, PC Zafeer Ahmed Jalbani, PC Basheer Ahmed Sethar, and PC Waleed Ali Wistaro duly in uniform and arm ammunition, on Govt. vehicle No.SPN-031 and DPC Sajjan Panhwar departure from CIA Center N/Feroze vide Roznamcha entry No.30/20.07.2019 time about 2000 hrs, for patrolling within the jurisdiction of District N/Feroze, after patrolling from different places, when reached at Dars stop via NHW Road, where they received spy information that one car bearing No.BAM 983 silver color, by carrying injurious to health betel nuts coming from N/Feroze to Moro via NHW, on such information, made Nakabandi and were checking the numbers of all the cars, which were coming from District N/Feroze, it was 2130 hrs on the lights of vehicles and torches, certainly one car BAM 983 silver color coming from N/Feroze towards Moro, they stopped the car, and take-aside of car, they inquired from the persons, who disclosed their names as Muhammad Ayoub S/o Kher Muhammad, by caste Bungulzai, R/o Sabzal Road Quetta and Driver disclosed his name as Muhammad Rizwan S/o Muhammad Naeem, by caste Qureshi, R/o H. No. 12/40 Mohalla A-One Colony Maleer City Karachi. Due to non-availability of private machirs, P.C Ali Asghar Rind and PC Zafeer Ahmed Jalbani were appointed as mashirs and saw inside the car and found 18 begs of white color in back seat and carriage (diggi) of car, which was de-sealed and found that betel nuts of injurious to health Z-21 and Safina company were available, car and betel nuts were taken in police custody and both the accused were taken in custody for the offence U/s 269, 272, 273 PPC, their body search was conducted, found following detailed cash amount and mobile phones, same were kept in Police custody and opened the begs, found 8 begs carried betel nuts of Z-21 company and 10 begs contained betel nuts of Safina Company, and each beg contained 50 packets total 900 packets, 18 packets were sealed separately for sample and remaining packets were sealed separately, then inquired from arrested accused of documents of car and injurious to health betel nuts, who disclosed that they are selling these betel nuts and also did not produce the documents of car, such mashirnama was prepared and arrested accused and recovered property were brought at P.S Moro where complainant lodged such F.I.R.

 

3.           Mr. Noor Muhammad Memon learned advocate for the applicants/accused contended that the applicants are innocent and involved by the police with mala fide intention and ulterior motives; that the applicants were arrested and were released by the learned Ist civil judge and J.M N.Feroze vide order dated: 21-07-2019 and after the released investigation officer with mala fide intentions added section 337-J; that the trial in progress and applicants not misused the concession of bail and are regularly attending the court; that no useful purpose will be served if the applicants remanded to jail and letter on released under section 497 Cr.P.C. lastly he prayed for confirmation of interim bail granted to the applicants.

 

4.           Mr. Khalil Ahmed Maitlo, Deputy Prosecutor General contended that the applicants are involved in the heinous offence; that all the witnesses supported the case in their statement under section 161 Cr.P.C; that huge quantity was recovered from the possession of applicants; that no mala fide on the part of police pointed out by the applicants. He lastly prays that their bail application may be dismissed.

 

5.           I have heard the learned counsel for the parties and perused the material available on record with their able assistance.

 

6.             The record reflects that complainant on spy information arrested the applicants and recovered the alleged Gutka from the car, The police have ample time to arrange the private persons to associate them as witnesses in the recovery proceedings but the complainant was failed to do so, which makes the recovery doubtful.

7.             It is a well settled principle of law that every case is to be decided on its facts and circumstances. I have carefully gone through the contents of FIR and the ingredients of section 337-J. In my humble view, at this stage, section 337-J does not apply to the facts and circumstances of the present case. Applicability of section 337-J is yet to be determined by the trial court after recording the evidence of prosecution witnesses. For ready reference section, 337-J is reproduced as under:-

S. 337-J----Whoever administers to or causes to be taken by, any person, any poison or any stupefying, intoxicating or unwholesome drug, or such other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence, or knowing it to be likely that he will thereby cause hurt may, in addition to the punishment of arsh or daman provided for the kind of hurt caused, be punished, having regard to the nature of the hurt caused, with imprisonment of either description for a term which may extend to ten years.

 

 

8.       It is settled by now that while deciding the bail application the lesser punishment provided in the law is to be considered. The above-said section provides the punishment for a term which may extend to ten years, the word may is used in the provision which provides discretion to the courts in punishing the accused found guilty after complete trial. Keeping in view the above punishment provided in section 337-J the offence as alleged against the applicants does not fall within the ambit of section 497 (1) Cr.P.C. The grant of bail in cases covered under the said provision is rule and refusal is an exception. Reliance is placed in cases of Tariq Bashir v. The State (PLD 1995 SC 34) and Muhammad Tanveer V. The State and another (PLD 2017 SC 733).

 

9.       The applicants were arrested by the police and later on they were granted bail by learned Judicial Magistrate N.Feroze on 21.07.2019 and on furnishing surety they were released, record does not reflect that such order of learned Magistrate was challenged by the prosecution by filing cancellation application and there is no evidence that the custody of applicants was required to the investigation officer after their release. Only the applicants who on insertion of section 337-J in the challan felt an apprehension of their arrest and approached the Court of Session Judge for bail before arrest which was declined.

 

10.            Learned counsel for applicants placed on record certified true copy of deposition of complainant Niaz Hussain which reflect that trial of the case is near to conclusion as in the cases of recovery only complainant, mashir and investigation officer is required to be examined, in such a situation declining pre-arrest bail and sending accused to the jail is not justifiable. It is for the trial court to discuss the evidence of the witnesses at the time of delivering the judgment, deeper appreciation of evidence is not permissible under the law while deciding bail plea, the material is to be assessed tentatively.

 

11.            From the tentative assessment of material available on record the applicants are made out the case for confirmation of their pre-arrest bail, therefore, the interim pre-arrest bail already granted to the applicants/accused by this court vide order dated: 01.11.2019 is confirmed on same terms and conditions.

 

12.         Observations made hereinabove are tentative and will not cause any prejudice to either party at the trial.

 

13.     Instant Criminal Bail Application is disposed of in the above terms.

 

                                                                                      J U D G E