IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Bail Appln. No. S-614 of 2022
Applicant:†††††††††††††††††††††††††† Hazrat Khan Brohi, ††
Through Mr. Muhammad Afzal Jagirani, Advocate †
The State††††††††††††††††††††††††††† Through Mr. Aitbar Ali Bullo, †††† †††††††††††††††††††††††††††††††††††††††††† Deputy Prosecutor General.
Date of hearing:††††††††††††††††† 20-01-2023
Date of Judgment:††††††††††††† 20-01-2023
ZULFIQAR ALI SANGI, J.- Through instant criminal bail application, the applicant/accused Hazrat Khan Brohi seeks post arrest-bail in Crime No.124/2022, registered at Police Station Staurt Ganj, District Shikarpur, for the offence U/S 8 of Gutka Mainpuri Act 2019, 6/9 C.N.S. Act, after rejection of his bail plea by the learned trial court vide order dated 26.11.2022.
2. The facts of the prosecution case are that the applicant/accused was arrested by the patrolling police party of P.S Starut Ganj, headed by A.S.I. Imtiaz Ali Sadhayo and 1000 grams of contraband charas was recovered from his possession, so also 990 grams of contraband charas and 10 kilograms of Gutka were recovered from back side/diggi of Corolla Car infront of mashirs, for which he was booked in the instant case as well as a separate for offence U/s 9(c) of C.N.S. Act was also registered against him.
3. Learned counsel for the applicant/accused submits that the applicant is innocent and has falsely been implicated in this case by the complainant; that he has not committed any offence as alleged in the F.I.R. Learned counsel for the applicant further submits that the punishment provided by under Section 8 of Sindh Prohibition of Preparation Manufacturing Storage Sale & Use of Gutka, Mainpuri Act, 2020 (herein after referred as Act, 2020) is three years hence, does not exceed limits of prohibitory clause of Section 497(i) C.P.C. He further submits that applicant is the first offender, therefore, he deserves leniency. He next submits that in such like cases grant of bail is a rule while refusal is an exception. He therefore, prays that applicant may be granted bail.†
4. Learned DPG for the state opposed the grant of post arrest 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. Heard learned counsel for the applicant, learned Additional Prosecutor General and perused the material available on the record.
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. Prima facie, the punishment U/S 8(1) as provided by the ct, 2020 is three (3) years which is entailing punishment for less than ten years and does not fall within the prohibitory clause of Section 497 Cr.PC and grant of bail in such cases is rule while refusal is an exception as has been held by Honourable Supreme Court of Pakistan in cases of Tarique Bashir V. State (PLD 1995 SC 34), Zafar Iqbal V. Muhammad Anwar (2009 SCMR 1488), Muhammad Tanveer V. State (PLD 2017 SC 733) and Shaikh Abdul Raheem V. The State etc. (2021 SCMR 822). Further, the Honourable Supreme Court in case of Muhammad Imran V. The State (PLD 2021 SC-903) has formulated the grounds for the case to fall within the exception meriting denial of bail as (a). the likelihood of the petitionerís abscondence to escape trial; (b) his tampering with the prosecution evidence or influencing the prosecution witnesses to obstruct the course of justice; or (c) his repeating the offence keeping in view his previous criminal record or the desperate manner in which he has prima facie acted in the commission of offence alleged. Further, Honourable Supreme Court held in the said order that the prosecution has to show if the case of the applicant falls within any of these exception on the basis of the material available on the record. In the case in hand, the prosecution has failed to establish any of the above ground meriting denial of the application of the applicant. It is also settled by the Honourable Apex Court that deeper appreciation of the evidence is not permissible while deciding the bail application and the same is to be decided tentatively on the basis of material available on the record.
8. In view of above, it appears that learned counsel for the applicant/accused has made out a case for grant of post-arrest bail in view of subsection (2) of Section 497 Cr.P.C. Accordingly, instant criminal bail application is allowed. The applicant/accused is admitted on post-arrest bail subject to furnishing solvent surety in the sum of Rs.50,000/- (Rupees Fifty thousand) and P.R bond in the like amount to the satisfaction of trial court.
9. Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the learned trial court while deciding the case of either party at trial.
J U D G E