ABDUL MOBEEN LAKHO, J.--Through this bail application, applicants Amjad son of Nazir Ahmed and Sultan son of Haji Abdul Hakeem seeks release on post arrest bail in Crime No. 591 of 2019 under Sections 269, 270 and 337-J, P.P.C. registered at Police Station Gulshan-e-Iqbal, Karachi. The bail plea raised by applicants before learned Session Judge, East, Karachi was declined vide order dated 16.10.2019.
2. The prosecution case is that complainant was patrolling along with subordinates PC Abdul Latif 33182, PC Amir Raza 38902, PC Muhammad Rafiq on Government Mobile-II for preventing of crimes in the area during patrolling, members of the patrolling team reached Rashid Minhas Road Near Moti Mehal Block-11, Gulshan-e- Iqbal Karachi, received information from informer that two persons are selling hazardous Gutkha at Pan Shop.
He therefore reached the spot along with subordinate staff at about 0100 hours and on the pointation apprehended two persons with the help of other police officials who disclosed their name as (1) Amjad son of Nazir Ahmed and (2) Sultan son of Haji Abdul Hakeem; due to unavailability of private witnesses they started personal search, recovered one shopper with 1/5 gram Gutkha from accused Amjad and recovered one shopper with 1/5 gram Gutkha from accused Sultan; said act of the accused falls within the definition of Sections 269, 270 and 337-J, P.P.C. the recovered articles were sealed for chemical examiner and accused persons were arrested according to Law; further investigation shall be conducted by SIO of the Police Station.
3. I have heard learned counsel for the applicants and learned Deputy Prosecutor General.
4. Learned counsel for the applicants submits that the applicant/ accused are innocent and have 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 for analysis of chemical examination; alleged Gutkha is foisted upon the accused, is easily available in the open market 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 applicants stand charged carries 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 Pan Shop where usually people are present but prosecution failed to associate any person so approached to become a witness of recovery and incident.
The prosecution did not even mention the names of the persons(s) so approached to stand as a mashir of the recovery. Even owner of the pan shop has not been invited to witness the recovery proceedings violating the mandatory requirement of 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 01 kilometer; the time of incident is 2100 hours (9:00 p.m. night) and the reporting time is 0200 hours [2:00 a.m. in night], thus it is quite difficult to understand why the police party took five hours to report the matter and completed all the requisite formalities. Prosecution story reflects that said "Gutkha" is "hazardous material". 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.
8. 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 cannot be stretched upon in favour of prosecution particularly at bail stage.
9. In view of above discussion sections 269 and 270 are bailable 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:- "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, 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 me extent 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 06-11-2019.
Note: - The observation made hereinabove are tentative in nature and shall not prejudice to the cast the trial. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.