ABDUL MOBEEN LAKHO, J.---Through this bail application, applicant Ameer Alam son of Noor Alam seeks release on post arrest bail in Crime No. 224 of 2019 under sections 269, 270 and 337-J, P.P.C. registered at Police Station Memon Goth, Karachi. The bail plea raised by applicant before learned IInd-Additional Session Jude, Malir , Karachi was declined vide order dated 1 1.10.2019.
2. The prosecution case is that on 06.10.2019, the complainant, Nazar Muhammad HC No.26467 along with his subordinate staff namely PC Irfan Ali, PC No.37185, Sanaullah PC No.34684 and Fida Hussain Driver/PC 35000 lodged FIR vide roznamcha entry No.41 were patrolling in Govt. vehicle in the area during patrolling at about 0010 hours they reached Bareecha Stop Gola i road near Water Park and found a person standing, who had a white coloured shopper in his right hand to whom they apprehended with the help of sub-ordinate staff, who disclosed his name as Ameer Alam son of Noor Alam. Due to non-availability of private witness at that moment. The complainant made his sub-ordinate staff as witness. Shopper was checked form which Gutka weighted 01 Kilo 200 grams and Mawa 400 grams were found, hence, this FIR was lodged against applicant / accused.
3. After registration of case, investigation was carried out and, challan submitted, before the concerned Court.
4. Learned counsel for the applicant submits that the applicant/ accused is innocent and has falsely been implicated in this case by the police with mala fide intention and for achieving ulterior motives; nothing has been recovered from the possession of applicant/accused; alleged recovery was foisted upon the applicant/accused by the complainant to show their efficiency; alleged offence does not fall within the prohibitory clause of section 497, Cr.P.C.; sections 269 and 270, P.P.C. are bailable; complainant failed to mention the registration number of said government vehicle in which they were patrolling; complainant failed to associate any private witness from the locality , therefore, complainant of the case violated the mandatory provision of section 103, Cr.P.C.; complainant miserably failed to mention the name of mashirs in the said FIR, hence the case falls within the ambit of subsection
(2) of 497, Cr.P.C.; the complainant miserably failed to extract the sample of Gutkkha and Mawa for analysis of chemical examination; alleged Gutkha and Mawa is foisted upon the accused, as can be easily foisted upon anyone, therefore, case requires further enquiry , as complainant and mashirs of alleged recovery are police officials, their statements needed process of cross-examination. He has relied upon the case laws reported as 2016 PCr.LJ Note 41, PLD 2017 Supreme Court 733 as well as non-reported case C.P. No.D-868 of 2019, passed by the Division Bench of this Court.
5. On the other hand learned DPG appearing for State opposed the bail application on the ground offence with which applicant stands charged caries maximum punishment of 10 years, hence does not fall under the prohibitory clause of section 497, Cr .P.C.
6. I have heard' the arguments advanced by the learned counsel for the applicant. learned counsel for the complainant and learned DPG for the State and perused the record available on the file.
7. Admittedly the incident according to the FIR has occurred on a bus stand where people are present but the prosecution failed to associate any person so approached to become a witness of recovery and incident. violating section 103 of Cr.P.C. it is also worth noting that the distance between the police Station and the place of occurrence is about 6/7 kilometers; the time of incident is 00:10 a.m., and the repor ting time is 12:30 a.m.; it is quite difficult to understand how police travelled the distance and completed all the formalities, within twenty minutes after the departure from the venue of occurrence.
8. The Chemical Examiner report which was submitted after the direction of the Court only mentions "hazardous materials, therefore, unfit for human consumption". The prosecution also did not mention if he was the seller or acting on behalf of the seller and/or purchaser of the "Gutkha" in the later case no name of the seller is mentioned or arrest shown.
9. Admitted the alleged recovery as it being easily available in market can easily be used for mala fide intentions. It is settled principle of law: every accused would be presumed to be blue eyed boy of law until and unless he may found guilty of charge. It is also settled principle of superior courts that law canno t be stretched upon in favour of prosecution particularly at bail stage.
10. In view of above discussion section 269 and 270 are billable and do not fall under the prohibitory clause of section 497, Cr .P.C.as far as section 337-J is concerned which is being reproduced for ready reference:-
11. "337-J Causing hurt by means of a poison . Whoever administers to, or causes to be taken by any person, any poison or any stupefying, intoxicatin g 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 arch or daman provided for the kind of hurt caused, be also punished, having regard to the nature of the hurt caused, with imprisonment of either description for a term which may extend to ten years"
The perusal of the above section show that the ingredients of the above section are yet to be determined which can only be done at trial after recording of evidence thus making it a case of further inquiry . These are the reasons for the short orders dated 31-10-2019.
Note:- The observation made hereinabove are tentative in nature and shall not prejudice the case in the trial.