IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Bail Application No.S-699 of 2019

Applicant : Asghar Ali Rajpute S/O Anwar Ali, through Mr. Rana Hafiz Tanveer Ahmed, Advocate

Respondent : The State through Syed Sardar Ali Shah,Duprty Prosecutor General, Sindh

Date of hearing : 06-01-2020

Date of Order : 06-01-2020

O R D E R

Zulfiqar Ali Sangi, J: Through instant application, applicant / accused Asghar Ali Rajput, seeks pre-arrest bail in FIR No.74/2019, registered at Police Station Bhiria City, District Naushahro Feroze, under section 337-J, 269 and 272 PPC. Applicant / accused approached for bail before-arrest to the Court of learned Sessions Judge Naushahro Feroze, which was transferred to learned 1^st Additional Sessions Judge Naushahro Feroze, where he was granted interim pre-arrest bail, however, later on the same was recalled and his plea for bail before-arrest was declined, vide order dated 13.11.2019, hence applicant filed instant bail application before this court.

2. Briefly the facts of the prosecution case are that on 21.09.2019 at 1600 hours complainant ASI Ali Asghar Ujjan along with his staff during patrolling, on spy information apprehended the applicant/accused Asghar Ali and recovered two packets of ‘Z-21 Gutka’ from his cabin, which according to applicant/accused he used to sell for his livelihood. Such memo of arrest and recovery was prepared at the spot in presence of mashirs PC Hassan Mujtaba and PC Suhrab Khan. Thereafter accused and property were brought at Police Station and lodged such FIR on behalf of the State.

3. Mr. Rana Hafiz Tanveer Ahmed, learned counsel for the applicant / accused argued that the applicant is innocent, he had not committed any offence as alleged by the complainant; that all the sections are bailable except section 337-J for which punishment is provided which may extend to ten years as such offence does not within the prohibitory clause of section 497 (1) Cr.P.C; that police not associated private witnesses in the recovery proceedings; that from the contents of FIR section 337-J is not made out; that at the first instance police had released the applicant on bail latter on section 337-J was added in the challan; that nothing was recovered from the applicant but alleged recovery was foisted upon the applicant; that the case has been challaned and applicant is no more required for further investigation; he lastly prayed for confirmation of bail.

4. Syed Sardar Ali Shah, DPG for the state opposed the confirmation of bail on the ground that recovery of huge quantity was effected from the possession of applicant; that no mala fide has been pointed out against the police; that recovered Gutka is injurious to health; he lastly prayed that applicant is not entitled for grant of pre-arrest bail therefore, 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. Record reflects that complainant on spy information arrested the applicant and recovered the alleged Gutka from the cabin alleged to be owned by applicant, police has ample time to arrange the private persons to associate them as witnesses in the recovery proceedings as there is no apprehension of escape of the applicant, complainant was failed to do so which makes the recovery doubtful, further the Prosecution was failed to establish the presence of any customer during investigation to show that applicant was selling the Gutka.

7. It is well settled principle of law that each and every case is to be decided on its own 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 is not applicable 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 re-produced 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 applicant 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 applicant was arrested by the police and later on he was released by investigation officer on bail by exercising his powers under section 497 Cr.P.C, record does not reflect that such release of applicant was challenged by the prosecution by filing cancellation application and there is no evidence that the custody of applicant was required to the investigation officer after his release. Only the applicant who on insertion of section 337-J in the challan felt apprehension of his arrest and approached the court of Session Judge for bail before arrest which was declined.

10. For the above reasons the applicant made out the case of confirmation of his pre-arrest bail, therefore, the interim pre-arrest bail already granted to the applicant / accused by this court vide order dated: 06-12-2019 is confirmed on same terms and conditions.

11. Observations made herein above are tentative in nature and will not cause any prejudice to either party at the trial.

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

JUDGE