MEHMOOD MAQBOOL BAJWA, J.---Post-arrest bail is being sought by the petitioners in case F.I.R. No. 758 of 2010 registered under sections 420, 468 and 471 of The Pakistan Penal Code, 1860 at Police Station Sumbrrial District Sialkot.
2. The prosecution version in brief contained in the Report under section 154 of the Code of Criminal Procedure, 1898 recorded on the strength of written complaint of Rana Abdullah Khan, District Sanitary Inspector Health Department, Sialkot is that on the application of Nao Bahar Bottling company (Authorised Dealer of Pepsi Cola) and in pursuance of order of Additional. Sessions Judge Daska, Agency owned by petitioners known as "Arian Traders" was sealed and at the time of sealing samples of Pepsi Cola and Seven Up Bottles duly signed by petitioner No.2 were procured and sent to public analyst for examination and as per report samples were not fit for human consumption and petitioners were manufacturing beverage by fixing the label and stickers of Pepsi Cola through fraud and forgery.
3. Heard adversaries and perused the record.
The learned counsel for the petitioners while pleading innocence of the petitioners maintained that they have been falsely implicated in the present case at the instance of local dealer of Pepsi Cola- at whose instance number of cases have been registered against the petitioners. Submitted that local health department is an instrument and tool in the hands of Nao Bahar Bottling Company (Dealer of Pepsi Cola) resulting in registration of cases against the petitioners particularly against petitioner No. 1 . Contended that keeping in view the nature of accusation case of petitioners is that of further inquiry. Continuing his arguments, the learned counsel for petitioners submitted that offences under which case has been registered against the petitioners does not fall within prohibitory clause and as such petitioners are entitled to concession of bail as a matter of right.
Conversely, the learned counsel for complainant as well as learned Deputy Prosecutor-General while opposing the bail petition maintained that petitioners were manufacturing beverage by using the forged and fabricated labels and stickers of Pepsi Cola which drink even otherwise was injurious to human consumption as per report of public analyst. Continuing arguments and relying upon the observation made in "Mian ARIF HUSSAIN alias MIAN JAVAID v. ADDITIONAL SESSIONS JUDGE DASKA and 3 others" (2010 YLR 1369) it was argued that petitioner No.1 is habitual, involved in selling adulterated bottles and as such is not entitled to concession of bail.
4. Both the petitioners are nominated in the F.I.R. They are partners of Agency known as "Arian Traders" manufacturing beverage used by public at large. It cannot be disputed that raid was conducted at A the Factory of petitioners and samples were procured by local Health Department duly signed by petitioner No.2 being partner. As per report of Public Analyst; samples were not fit for human consumption and were being sold by using the forged stickers and labels of Pepsi Cola.
Argument regarding false implication of the petitioners at the instance of Nao Bahar Bottlers (local dealer of Pepsi cola) cannot advance plea of petitioners in the absence of any material available on record and report of Public Analyst. Offence under section 420 of The Pakistan Penal Code, 1860 is bailable while rest of the offences though not bailable but does not fall within prohibitory clause.
Though one cannot dispute that grant of, bail is a rule and refusal is an exception in cases not falling within prohibitory clause but nevertheless, no hard and fast rule can be formulated in this regard. Each and every case has to be decided keeping in view its own facts and circumstances.
Conduct of the accused is one of the most relevant factor in such like cases while deciding the question of bail as held in "SHAMEEL AHMED VS THE STATE" (2009 SCM R 174). It is the case of the petitioners themselves that so many cases have been registered against the petitioners with the allegation of manufacturing and selling beverage which according to allegation is injurious to human health. Conduct of the petitioner No.1 was duly noted by this Court in " Mian ARIF HUSSAIN"
(2010 YLR 1369) and was highlighted as follow:-- "The petitioner seems to be a habitual person in selling the adulterated bottles to be used for drinking and number of criminal cases mentioned above have been registered against him------
5. Matter can be looked from another angle as well. Line of distinction and demarcation has to be made between an offence committed against an individual and an offence directed against the society as a whole for the purpose of bail. The honourable Supreme Court of Pakistan dealt with the proposition in "IMTIAZ AHMED and another v. The STATE" (PLD 1997 SC 545) and it was held at page 552 as follow:- "I may observe that a distinction is to be made between an offence which is committed against an individual like a theft and tin offence which is directed against society as a whole for the purpose of bail. Similarly, a distinction is to be kept in mind between an offence committed by an individual in his private capacity and an offence committed by a public functionary in respect of or in connection with his public office for the aforesaid purpose of bail. In the former cases, the practice to allow bail in cases not falling under prohibitory clause of section 497, Cr.P. C. In the absence of an exceptional circumstances may be followed but in the latter category, the courts should be strict in exercise of discretion of bail. In my view, the above category of the offenders belongs to a distinct class and they qualify to be treated falling within an exceptional circumstances of the nature warranting refusal of bail even where maximum sentence is less than 10 years' R.I. For the offence involved provided the Court is satisfied that prima facie, there is material on record to connect the accused concerned with the commission of the offence involved."
6. I am not unmindful that above observations were recorded in the case registered under the provisions of The Prevention of Corruption Act, (II of 1949) read with provisions of The Pakistan Penal Code, 1860 against public functionaries but observations are fully attracted to the cases committed against society under different statutes.
7. Report of Public Analyst declaring the samples unfit for human consumption clearly suggests that petitioners are involved in the crime against the society injurious to health of public at large attracting the provision of The West Pakistan Pure Food Ordinance (VII) of 1960. Though normally such offences are treated petty offences but how such offences can be said to be of petty nature which causes serious danger to the human health and life. It is the need of the day that persons involved in such like crime and that too habitual should be dealt with by applying the law with its full force but subject to condition of availability of incriminating evidence.
8. Pursuant to discussion made, sufficient incriminating material is available to connect both the petitioners in the offences under which case has been registered besides provisions of The West Pakistan Pure Food Ordinance (VII of 1960) which were added later on. Conduct of petitioner No.1 as discussed also disentitles him to have the premium of post arrest bail. Consequently, application for post arrest' bail is hereby rejected.