Muhammad Anwar son of Ayoub vs The State
The applicant sought post-arrest bail in a case registered under Sections 269 and 270 of the Pakistan Penal Code 1860 and Section 8 of the Gutka Mawa Act 2019, following his arrest for alleged possession of 15 KG of Chalia. The core legal question was whether the applicant was entitled to bail given the absence of a chemical examination report, the lack of independent witnesses in a populated area, and the reliance solely on police testimony. The Court held that the applicant was entitled to bail, noting that the absence of a chemical report at the challan stage and the failure to associate independent witnesses as required by Section 103 of the Code of Criminal Procedure 1898 rendered the prosecution's case subject to further inquiry. The Court further clarified that the mere pendency of other criminal cases does not ipso facto disentitle an accused from bail. Consequently, the application was allowed, with the Court emphasizing that the prosecution's evidence required minute scrutiny at trial and that the applicant's continued detention was not justified.
- Does the absence of a chemical report at the challan stage entitle an accused to further inquiry for the purpose of bail?
- Does the mere pendency of other criminal cases against an accused automatically disentitle them to the grant of bail?
- Is the failure to associate independent witnesses in a populated area a valid ground for questioning the prosecution's case at the bail stage?
- Section 269, Pakistan Penal Code 1860
- Section 270, Pakistan Penal Code 1860
- Section 8, Gutka Mawa Act 2019
- Section 103, Code of Criminal Procedure 1898
- Section 497(ii), Code of Criminal Procedure 1898
ORDER
Abdul Maalik Gaddi, J. Applicant/ accused Muhammad Anwar seeks post arrest bail in Crime No.471/2020 registered under Sections 269/ 270 PPC read with Section 8 of Gutka Mawa Act, 2019 at P.S. Ibrahim Hyderi, Karachi. Prior to filing this bail application, applicant approached to the trial Court for post arrest bail, but the same was dismissed vide order dated 22.8.2020. Hence this bail application.
2. Allegation against the applicant/ accus ed is that on 09.8.2020 at 08:15 p.m., when police party headed by ASI Zameer Hussain was on patrolling duty to eliminate crime in the area, when they reached inside street near Jamoot Muhalla, Ibrahim Hyderi, Karachi, present accused was found in a suspected condition by carrying a bag containing 15 KG Chalia from his possession in presence of mashirs, which used for preparation of gutka/ mawa, the same was harmful for human health and causes mouth cancer to its users, hence same was seized on the spot, hence, present FIR was lodged.
3. Learned counsel for applicant/ accused has contended that the applicant/ accused is innocent and has falsely been implicated in this case; that no private witness has been associated despite of place of incident was thickly populated area; that there is no direct or indirect evidence on the record against the applicant/ accused which connects the applicant/ accused with the alleged offence, except the itself engineered and self-made statement of the police party; that there is violation of golden principle of law under Section 103 of Cr.PC, as the alleged incident took place in thickly populated area being residential as well as commercial area, which remain very busy place for 24 hours, but even then complainant has not tried to associate 02 or more persons of the locality to act as mashir of arrest, alleged recovery and alleged site inspection, such aspect also creates doubt and lacuna into the prosecution story as such the case requires further inquiry under Section 497(ii) CrPC; that all the witnesses are police officials and subordinates to the complainant, hence their statements have no value in the eyes of law and the alleged recovery is highly doubtful, it is basic principle of law that every doubt and lacuna always goes in favour of the applicant/ accused at any stage even at bail stage, hence, he prayed for bail.
4. On the other hand, learned DPG opposed the bail application on the ground that accused had a previous criminal record and there are number of FIRs against accused; that huge quantity of chalia/ gutka is recovered and police of ficials are competent witnesses.
5. Parties advocates have been heard and record perused.
6. It is noted that case has been challaned and present applicant/ accused is no more required for investigation. On Court query , I.O. of the case as well as learned DPG informed to the Court that uptil now no report with regard to chemical examination of the recovered property is received. It is surprising to note that when the chemical report with regard to alleged property has not been received then how the trial Court has accepted the challan. This fact alone shows that when the chemical report is not available then how the applicant could be confined in jail for indefinite period for the offence under which the punishment is not more than three years. It is noted that the whole case of the prosecution is based upon the evidence of police officials. No doubt, the evidence of police officials is as good as private witnesses, but when whole the case of the prosecution is based upon the evidence of police officials, therefore, the same is required to be minutely scrutinized at the time of trial. Particularly , in a scenario when the applicant was apprehended from inside street near Jamoot Muhalla, Ibrahim Hyderi, Karachi, which according to police paper was a populated area but despite this fact no independent person of the locality has been cited to witness the recovery proceedings. No plausible explanation in this regard has been furnished. As observed above the chemical report has not been received, therefore, the case of the applicant requires further probe.
7. It is stated by learned counsel for applicant that since the challan has been submitted but no substantial proceedings has been made by the trial Court in this case, therefore, he was of the view that if the trial has still not been commenced, then when it would be concluded, as such, he was of the view that further detention of the applicant in this case would not serve the purpose. When this fact has been confronted to learned DPG for her reply , there was no satisfactory answer with her .
8. Nothing on record that present applicant/ accused is previously convicted. On Court query , learned DPG submits that the police papers available with her shows that the applicant is involved in criminal cases pending against him, therefore, if applicant is released on bail, he would certainly repeat the offence. I am not impressed with the arguments of learned DPG, for the reasons that merely pendency of the case against the applicant does not ipso facto disentitle him for grant of bail, if otherwise he is entitled.
9. In this regard, I am supported with case-laws reported as 2012 SCMR 606 (Jafar @ Jafari vs. The State), 2017 PCrLJ 1661 (Riaz-ur-Rehman vs. The State) and 2013 PCrLJ 1782 (Shah Nawaz alias Chullu vs. The State and another).
10. In view of what I have discussed above, applicant has a good case for further inquiry in the matter , therefore, the applicant is admitted to bail on furnishing solvent surety in the sum of Rs.50,000/- and PR bond in the like amount to the satisfaction of the 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.
12. It is made clear that in case if durin g 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.
Instant bail application stands allowed in the above terms.