IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Bail Application No. S- 531of 2020
Applicant: Nisar Ali @ Nisar Ahmed Brohi, Through Mr. Habibullah G. GhouriAdvocate,
Complainant: Nadeem Ahmed Qureshi, through Mr. Mir Ahmed Raza A. Sundrani, Advocate.
State: Through Mr. Muhammad Noonari, Deputy Prosecutor General.
Date of hearing: 06-11-2020
Date of order: 06-11-2020
O R D E R
Zulfiqar Ali Sangi, J.- Applicant Nisar Ali seeks his post arrest bail in F.I.R No.53/2020, registered at Police StationBadeh, for offenceunder sections 462-B,462-F, 427 PPC. Prior to this his bail application was declined by learned 1st Additional Sessions Judge, Larkana, vide order dated 07.10.2020, therefore, the applicant has approached this court for bail.
2. As per FIR, the allegation against the present applicant Nisar Ali is that he along with other 12 accused, were found stealing the fuel by installing clip in PARCO pipe line crossing from his land bearing survey number 1287(4-27) through drums lying in tractor trolley and tank.
3. Learned counsel for the applicant submits that the applicant is innocent and he has falsely been implicatedin this case due to enmity with police party, as the applicant could not grease the palm of the police; that the case of prosecution is total improbable as it is not believable and judicious mind would not accept the prosecution that the complainant party who are posted at Shikarpur and they left for checking of pipe line and after receipt of information on wireless after dropping of the pressure they went and joined the police party and then went to the place of incident; that this is quite unbelievable that the culprits remained waiting at the scene of offence till arrival of complainant and police party; that it is again out of imagination that the culprits were committing theft of oil from the pipe line during broad day time and in a populated area. It appears that the prosecution story has been managed by the complainant party; that as for applicant Nisar Ali @ Nisar Hussain Brohi, is concerned he is owner of land in question which is lying barren and uncultivated because of passing of t he oil pipe line as well as there is also a Gas pipe line which passes from the land; that there is a security check post belonging to the security officer of the Gas in the land of the applicant where their guards, security persons remain available around the clock; that the alleged tractor and oil tank does not belong to applicant; that offence does not come within the prohibitory clause of section 497 Cr.PC as the punishment provided in between 4 to 14 years and for the consideration of bail, the lesser punishment is to be taken into consideration; that nothing incriminating has been recovered from the applicant and now the investigation is complete and the applicant is no more required for further investigation. Lastly he prayed that applicant may be granted bail.
4. Learned Deputy Prosecutor General assisted by advocate for the complainant contended that name of applicant transpires in the FIR; that applicant was arrested at the spot; that it was day time incident; that incriminating material was recovered from the place of incident and further submitted that all these things are against the applicant therefore the applicant is not entitle for grant of bail.
5. Heard arguments of learned counsel for the parties and perused the record with their able assistance.
6. Admittedly, the applicant is owner of the land where alleged incident took place, advocate for complainant and DPG are unable to show any material which connect the applicant with the recovered tractor and other articles however, they pointed out that during investigation no documentary evidence come on record about the ownership of recovered tractor though the investigation officer tried to collect such evidence. The punishment provided for the offence alleged in the FIR is 14 years but not less than 07 years, and the challan against the applicant was submitted after completing the investigation and applicant is no more required for further investigation. Since section 462-B and 462-F P.P.C. provides alternate sentences therefore the while deciding the question of bail lesser sentence is to be considered. In Shahmoro's case 2006 YLR 3167 while considering the lesser sentence of the offence this Court granted bail to the accused. In view of above facts and the dictum laid down in Shahmoro's case (Supra), I am of the considered view that applicant has succeeded to make out a case for grant of bail as there are no reasonable grounds to believe that he has committed the offence punishment with death, imprisonment for life or 10 years. Consequently, the application is allowed. Let the applicant be released on bail on furnishing a solvent surety in the sum of Rs.100,000/- (One lac) and P.R. bond in the like amount to the satisfaction of the trial court.