THE HIGH COURT OF SINDH AT KARACHI
Cr. Bail Application No.1704 of 2019
Applicant : Rahim son of Shaukat
Through M/s. Muhammad Ramzan and Nisar Ahmed Narejo, Advocates
Respondent : The State Through Mr. Abdullah Rajput,
Deputy Prosecutor General Sindh along with
ASI Ali Gul Chandio PS Gharo
Date of hearing : 02.12.2019
Date of Order : 02.12.2019
For hearing of bail application
Abdul Maalik Gaddi, J. – Applicant/ accused seeks bail in Crime No.141/2019 registered under Sections 269/270/337-J of PPC at P.S. Gharo. Prior to filing this bail application, applicant/ accused approached to the trial Court for grant of bail, but the same was dismissed vide order dated 29.10.2019.
2. Brief facts of the prosecution case are that on 06.10.2019, complainant ASI Ali Gul Chandio posted at police station Gharo left PS under roznamcha entry No.16 at 1950 hours along with subordinate staff for patrolling in police mobile. During patrolling when they reached at RHC, Gharo Hospital, he received spy information that one person was selling banned and hazardous Gutka, causing cancer in his cabin at Gharo No.2. Accordingly, he along with staff reached at pointed place and saw one person coming out from the cabin having one brown shopper in his hand, police party alighted from the police mobile, encircled and apprehended him at about 2030 hours along with brown color shopper. The shopper was checked and found 98 puries of Mawa/ Gutka in it. On inquiry apprehended accused disclosed his name as Rahim son of Shaukat by caste Khawaja, resident of Gharo Town, Taluka Mirpur Sakro. Nothing was recovered from his personal search. Out of 98, only 05 puries were sealed for expert examination. Hence complainant after observing formalities arrested the present accused and prepared Mashirnama of arrest, search and recovery in presence of mashirs PC Ansar Ali and PC Naseer Ahmed on spot. Then he brought the accused with recovered property at PS and lodged the FIR.
3. Learned counsel for applicant/ accused contended that applicant/ accused is innocent and has falsely been implicated in this case; that nothing has been recovered from the possession of applicant/ accused; that the place of incident was populated area, but no any independent person was cited as a mashir of arrest and recovery and all the mashirs are police officials and subordinates of arresting officer which is clear violation of section 103 CrPC, and no any private person of ‘Elaqa’ has made any complaint in this regard at any police station particularly at Gharo; that about the recovery of material, no any specific role has been assigned on the part of present applicant/ accused, as such, matter required further inquiry; that all the offences applied in this case either bailable or their punishment do not fall within the prohibitory clause of Section 497 CrPC except Section 337-J of PPC, which is, though, non-bailable, but nothing on record that the applicant was administered any poisonous material to anybody. Therefore, according to him, it is yet to be determined by the trial Court whether the present applicant is involved in a case which is injurious to health of the people or otherwise. Therefore, further detention of the applicant would not serve the purpose. Hence he prayed for bail.
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 a shop, 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 ninety eight puries of Mawa/ Gutka was recovered. No private witness has been associated in spite of prior spy information received during patrolling and that the alleged shop from where the applicant was arrested along with alleged Mawa/ Gutka was situated in a populated area, 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 a 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 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 challaned. Present applicant/ accused is no more required for investigation.
7. It is also noted that in this matter complainant ASI Ali Gul Chandio of PS Gharo lodged the FIR, but as per police paper he has also investigated the matter. Since in this matter complainant also acted as investigating officer, although the evidence of complainant/ police official, who also becomes I.O. is admissible in evidence but for the safe administration of justice, his evidence is also required to be minutely scrutinized at the time of trial, as the same is not corroborated by any independent evidence.
8. On perusal of record it appears that in this matter Sections 269 and 270 of PPC are bailable and their punishment also do not fall within the prohibitory clause of Section 497 CrPC. However, as far as the applicability of Section 337-J of PPC 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, 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. It is also noted that out of 98 puries, only 5 (five) puries were sent to chemical examiner for testing purpose. Therefore, there is no evidence with regard to remaining puries, whether the same were containing Mawa/ Gutka or otherwise. Nothing on record to whom the applicant was selling the Mawa/ Gutka. No purchaser was arrested at the time of incident and no purchase money has also been recovered.
9. 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 scales tilt in favour of the applicant for grant of bail. In this regard, I am supported with the case of Shehmoro vs. The State reported in SBLR 2007 Sindh 249.
10. 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, CrPC., 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.
11. 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 trial Court would be competent to cancel the bail of the applicant without making any reference to this Court.