ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Crl.Bail.Appln.No.S-263 of 2020
DATE ORDER WITH SIGNATURE OF JUDGE
For hearing of bail application.
18.05.2020.
Mr. Sajjad Ali Jamarani, Advocate for the applicant.
Mr. Abdul Rasheed Abro, D.A.G for State alongwith
I.O/ASI Anwar Ali Junejo of P.S Railways, Larkana.
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Irshad Ali Shah J;- The facts in brief necessary for passing the instant order are that the applicant and other culprits were found travelling in Railway Train named “Bolan Mail” without having purchased tickets. On being prevented from doing so at Railway Station, Shah Nawaz Bhutto, Larkana, they deterred complainant PC Abdul Latif from discharging his lawful duty as public servant by causing him knife blows on his left shoulder, with intention to commit his murder. Beside above offence, on recovery of knife, the applicant was also booked for an offence punishable under section 23(i) (a) of Sindh Arms Act, 2013. On conclusion of the investigation, such report/charge sheet was submitted before learned Judge, Anti Terrorism Court, Larkana, who returned the same with the following observation;
“separate interim challan/charge sheet submitted for trial of accused for the offence of S-23 (i) (a) of Sindh Arms Act is hereby returned to I.O for want of proper section triable by Court”.
2. Subsequently, the report/charge sheet was submitted before learned Magistrate having jurisdiction, who by taking cognizance whereof, sent up the same to learned Sessions Judge, Larkana, in terms of Sub Section (2) of Section 190 Cr.PC, who then made it over to learned 4th Assistant Sessions Judge, Larkana, for its disposal according to law.
3. Learned 4th Assistant Sessions Judge, Larkana, framed the charge, which was denied by the applicant, when the case was ripe for its evidence, learned 4th Assistant Sessions Judge, Larkana, vide his order dated 22.04.2020, returned the FIR of the present case together with report/charge sheet to SHO, P.S Railways, Larkana, by making the following observation;
“What appears from the order dated 16.05.2019 is that charge sheet was returned for want of proper triable section. This does not mean that the case was to be tried before the ordinary Court, rather the investigation agency as well as prosecution was supposed to have looked after applicability of punitive provision of law, if any, looking to the fact that the connected offence is to be tried jointly with the main offence with reference to Section 21-M of the Anti-Terrorism Act,1997 as well as Section 235 Cr.PC. With these directions, FIR together with the charge sheet is hereby returned to the SHO Railway Police Station, Larkana”.
4. The above said order of learned 4th Assistant Sessions Judge, Larkana, obviously was not brought within the knowledge of the applicant, therefore, the applicant after his admission to bail by this Court in main case, sought for his release on bail in above said case by making such application, it was not entertained by learned 4th Assistant Sessions Judge, Larkana, vide his order dated 09.05.2020, the operative part whereof reads as under;
“the FIR and charge sheet have already been returned, this bail application cannot be entertained”.
5. It is in these circumstances, the applicant has come before this Court for his release on bail by preferring the instant application under section 497 Cr.PC.
6. It is contended by learned counsel for the applicant that the applicant being innocent has been involved in this case falsely by the police in order to satisfy its grudge with him; Section 23 (i) (a) of Sindh Arms Act, 2013 is misapplied by the police, as no-where under Sindh Arms Act, 2013, the knife is defined as weapon, arm or ammunition; the applicant is in custody since 14 months, and has already been admitted to bail in main case by this Court and his custody after return of the report/charge sheet is illegal, therefore, the applicant is entitled to be released on bail on point of further inquiry.
7. It is stated by learned D.A.G for the State who is assisted by the Investigating Officer of the case that after return of the report/charge sheet, it has not been submitted before any other Court for trial of the applicant for the alleged recovery of knife from him.
8. I have considered the above arguments and perused the record.
9. After return of the report/charge sheet, it has not been submitted by the police before any Court, therefore, the custody of the applicant after 22.04.2020, obviously is illegal, therefore, the application under section 497 Cr.PC moved by the applicant for his release on bail, is converted into Crl.Misc.Application under section 561-A Cr.PC. Consequently, it is ordered that the applicant shall be released forthwith (if not required in any other custody case) subject to his executing P.R bond in sum of Rs.50,000/-(Fifty thousand), to the satisfaction of Superintendent, Central Prison, Larkana, for his appearance before learned 4th Assistant Sessions Judge, Larkana.
10. Further, order dated 22.04.2020 passed by learned 4th Assistant Sessions Judge, Larkana, whereby the FIR together with report/charge sheet has been returned to SHO, P.S Railways, Larkana, to be presented before the Court having jurisdiction, has been passed without providing chance of hearing to anyone, which is contrary to the mandate contained by Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973, which provides chance of fair trial to every citizen for determination of his rights and liabilities. Therefore, it is set aside with direction to learned 4th Assistant Sessions Judge, Larkana, to decide the point of jurisdiction afresh, by providing chance of hearing to all the parties.
J U D G E