ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Crl. Bail Appln. No. 68 of 2009.
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Date |
Order with signature of Judge |
01. For orders on office objection (A).
02. For hearing.
30.03.2009.
Mr. Ali Nawaz Ghanghro, Advocate for the applicant.
Mr. Nisar Ahmed G. Abro, State counsel.
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Syed Shafqat Ali Shah Masoomi, J-. Applicant has approached this court for grant of bail in crime No. 53/2002, registered P.S Market, Larkana, under section 379 P.P.C, challenging the order dated 14.01.2009, passed by learned Sessions Judge, Larkana, whereby the applicant was declined bail.
2. The facts leading to this case are that on 01.08.2002, on police party of P.S Market, Larkana, headed by complainant ASI Jameel Ahmed Chandio, received information through control-room, that a motorcycle bearing registration No. DU-2567, belonging to Rajandar Kumar was stolen by some unknown persons; on receipt of such information the police party proceeded for recovery of the stolen motorcycle and holding “Nakabandi”, in the meantime they also called other police force for their help and proceeded towards Ghaar Waah. At about 1600 hours the police party reached at Orchard of Ghulam Mohammad Jatoi and saw three persons coming on motorcycle towards them and on reaching near them they were identified to be Nazir alias Nazoo, Irshad alias Ishoo and third person was not known to police party. The culprits on seeing police party while leaving motorcycle started running; the police party chased them but could not succeed to capture them. The police party found the motorcycle to be the same stolen property, therefore, PC Abdul Khaliq and LNC Ghulam Anwar were nominated as mashirs and such mashirnama was prepared. The police party then came at police station alongwith motorcycle, where complainant lodged report on behalf of the state.
3. Learned counsel for the applicant argued that the offence if any would fall under section 411 P.P.C, as the alleged motorcycle has not been recovered from exclusive possession of the applicant. Learned counsel further contended that how the police party presumed that the motorcycle which they found to be stolen property. There is inordinate delay of one and half an hour in lodging the F.I.R. Learned counsel further contends that the police party had not kept entry of their departure in daily diary and even no such number has been mentioned in the mashirnama of recovery, so also in F.I.R. which clearly shows that police had prepared mashirnama at police station. Learned advocate for applicant further contended that the offence with which the applicant is charged is carrying maximum punishment upto three years, which fact has not been considered by the learned Sessions Judge while rejecting the bail plea of the applicant. So for the contention of learned State counsel that applicant has been declared as absconder, learned counsel has straightaway argued that basic requirement of section 87 & 88 Cr.P.C have not been fulfilled by not publishing the notice in any newspaper.
4. Learned State counsel opposed the grant of bail to applicant/ accused.
5. Admittedly, the motorcycle has not been recovered from the exclusive possession of the applicant. It is strange that there were many police personnel i.e. PC Abdul Khalique, PC Sabit Ali, H.C Mohammad Nawaz on patrolling duly armed with deadly weapons alongwith vehicle but even then they did not apprehend the culprits, which create doubt. The offence under section 379 P.P.C is punishable upto three years. The applicant has remained in jail since 12.11.2008. It is settled principle of law that bail is rule and refusal is an exceptional in the cases which are not punishable with death, transportation for life and or for ten years. In this respect I am fortified by P.L.D 1995 S.C 34. In view of the above circumstances, the applicant has been able to make out a case for grant of bail, therefore, he is admitted to bail on his furnishing solvent surety in the sum of Rs.100,000/- and P.R bond in the like amount to the satisfaction of trial court.
Judge