IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Bail Application No.S-739 of 2019

Ayaz Ali Pathan: Through Mr. Imdad Ali Malik,

Advocate for the applicant.

The State : Through Mr. Abdul RehmanKolachi,

Deputy Prosecutor General

Date of hearing: 24-02-2020.

Date of Announcement: 06-03-2020.

O R D E R

Zulfiqar Ali Sangi, J: Through the instant application, the applicant/accused Ayaz Khan Pathan, seeks after arrest bail in FIR No.127/2019, registered at Police Station Site Area, Sukkur for the offences under Sections 382, 342, 457 & 34 PPC. Applicant/accused applied for his post-arrest bail before the learned Court of Judicial magistrate-1 Sukkur and same was declined vide order dated: 06-12-2019 after the same applicant moved his bail application before the court of Additional Sessions Judge-V, Sukkur, who declined the same vide order dated; 18.12.2019, hence applicant approached this Court for bail.

2. The brief facts of prosecution case are that on 30.09.2019 at 0830 hours (morning), the complainant received a phone call from GodownInchargeIftikharKhokhar, stating therein that security guard JamshairLakhan told him via mobile phone that when he reached outside of office, he saw that small door of Godown was closed with a cable and on knocking the door, none opened. He further told that after unravel the cable entered inside the Godown and heard the noise of another security guard namely Haneef from the bathroom. He saw that the Haneef was tied with a white coloured rope, who disclosed that at 0200 hours a person having a pistol, detained him in the bathroom and later on he heard the noise of 9/10 other person shifting articles in the vehicle. Hence complainant lodged such FIR.

3. Mr. Imdad Ali Malik, learned counsel for applicant/accused contended that applicant is innocent and involved by the complainant with malfide intention; that there is delay of about 05 days in registration of FIR and the same has not been explained by the complainant; that the name of the applicant does not transpire in the FIR; that no identification parade was held after the arrest of applicant; that recovery is foisted upon the applicant; that for the recovery another FIR bearing crime No:1773 of 2019 under section 411 PPC was registered at police stationPahariPura, Peshawar. Lastly, he submits that the witnesses also not named the applicant in their statements under section 161 Cr.P.C and prayed for grant of bail. He in support of his arguments he relied upon the cases of Shahzad V. The state (2013 MLD 944), ArsalanMasih and others V. The State and others (2019 SCMR 1152), Muhammad Tanveer V. The State and another (PLD 2017 Supreme Court 733) and Khalil Ahmed Soomro and others V. The State (PLD 2017 Supreme Court 730).

4. Mr. Abdul RehmanKolachi, learned Deputy Prosecutor General for the State contended that admittedly FIR was registered against unknown persons but the robbed articles were recovered from the house of applicant; that no enmity or ill-will suggested against the complainant which suggest false implication; that applicant is resident of Peshawar and he will be abscond away if bail is granted to him; that other accused are still absconders; that offence is punishable up to 14 years and fall within the ambit of section 497 Cr.P.C; that fingerprints were matched with the applicant as per report of the NADRA which is sufficient to connect applicant with the crime; that FIR of recovery has been registered against the applicant and the witnesses are supporting the case of complainant. Lastly, he prayed that the bail application of the applicant may be dismissed.

5. I have heard the learned counsel for the parties and perused the material available on record with their able assistance.

6. Admittedly the incident took place on 29-09-2019 and the FIR was registered on 02-10-2019, the complainant in the FIR stated that he informed the Company about the incident on the same day but he has not given a satisfactory explanation as to why FIR was registered on 02-10-2019, which creates some doubt in the case of the prosecution.

7. Record reflects that further statement of complainant was recorded on 25-10-2019 in which he stated that he came to know that applicant is selling robbed articles in Peshawar on such further stamen police made correspondence with the authorities of Peshawar and the applicant was arrested and articles were recovered but the source of such information has not been disclosed by the complainant.

8. Most aspect of the case is that recovery of 10 A/C were shown on 03-11-2019 from the house of applicant and 13 A/C were shown recovered from the house of accused YasirZaman and both the houses are separate but the police prepared only one mashirnama of recovery of both the places wherefrom recovery was effected.The mashirnama of recovery shows that the police of police station site area Sukkur was also with the police of police station PahariPura Peshawar and it is surprising that inspite of such fact the police of police station site area Sukkurhas shown arrest and recovery on 13-11-2019 and prepare two separate mashirnama in the present case.

9. The applicant was neither nominated in the FIR nor the descriptions mentioned in the FIR, even after the arrest of applicant the identification parade was not held which makes the case as one of further inquiry.

10. For the recovery of the stolen property a separated FIR was registered against the applicant under section 411 PPC and the applicant will face the case before the competent court of law but in the present case at this stage prosecution has not been able to point out any material which connects the applicant with the commission of the offence.

11. It is a well-settled principle of law that mere heinousness of offence is no ground to reject the bail plea. The basic concept of bail is that no innocent person's liberty is to be curtailed until and unless proved otherwise. The essential prerequisite for the grant of bail by subsection (2) of section 497, Cr.P.C. is that the court must be satisfied based onthe material placed on record that there are reasonable grounds to believe that the accused is not guilty of an offence punishable with death or imprisonment for life. Condition of this clause is that sufficient grounds exist for further inquiry into the guilt of the accused which would mean that question should be such which has nexus with the result of the case and can show or tend to show that the accused was not guilty of offence with which he is charged. Grant or rejection of bail is a discretionary relief but such discretion should be exercised fairly and judicially. The word discretion when applied to court means sound discretion judiciously guided by law and to lessen the hardship of the people. It is the well-settled and basic principle of law that the bail is not to be refused as punishment.

12. The challan against the applicant was submitted before the court having jurisdiction and the applicant is no more required for further investigation. It is well-settled principle of law that deeper appreciation of evidence is not permissible for deciding the bail plea and the material is to be assessed tentatively, from the tentative assessment of material available on recordI am of the considered view that applicant has succeeded to make out a case for bail. Consequently, the application is allowed, Since learned DPG has shown apprehension that applicant may abscond away after grant of bail on the point of applicants’ residence in Peshawar, therefore,the applicant be released on bail on furnishing a security amount of Rs.300,000 (three lac) and P.R. bond in the like amount to the satisfaction of the trial court.

13. Observations made hereinabove are tentative and will not cause any prejudice to either party at the trial.

JUDGE