IN THE HIGH COURT OF SINDH, SUKKUR BENCH, SUKKUR

Criminal Bail Application No.S-514 of 2021

Applicants: Imtiaz s/o Muhammad Tufail and Mst. Anum Naz d/o Muhammad Tufail, through Mr. Rukhsar Ahmed M. Junejo, Advocate.

Complainant: Mst. Saba through Mr. Zafar Ali Eidan Mangi, Advocate

State: Through Aftab Ahmed Shar, Additional Prosecutor General

Date of hearing: 25.10.2021

Date of decision: 25.10.2021

O R D E R

Zulfiqar Ali Sangi, J: Through this bail application, the applicants Imtiaz s/o Muhammad Tufail and Mst. Anam Naz d/o Muhammad Tufail seek their pre-arrest bail in Crime No.103 of 2021, registered at P.S “A” Section, District Sukkur, for an offence punishable u/s 506/2, 454, 380, 34 PPC. Earlier their bail application was declined by learned Additional Sessions Judge-V, Sukkur vide order dated 16.08.2021, hence this application.

2. The allegation against the present applicants/ accused is that they entered into the house of Complainant and theft out golden ornaments weighing about 50 Tolas worth of Rs.50,000,00/- (Rupees Fifty Lacs) and cash amouting to Rs.50,000,00/- (Rupees Fifty Lacs) in shape of different currency notes from the iron box lying under the bed of complainant’s room.

3. Learned Counsel for the Applicant, at the very outset, submits that as per FIR, the alleged incident took place on 13.06.2021; however FIR was registered on 30.06.2021 after a delay of seventeen (17) days and the same has not properly been explained by the Complainant. He further submits that though in the contents of FIR, the date of incident is mentioned as 13.06.2021; however complainant came to know about the alleged incident on 18.06.2021, which, on the face of it, appears to be managed one. He further submits that as per FIR, no one has seen the applicants/ accused persons while committing offence of theft. It is further argued that punishment of alleged offence for which the applicants stand charged is upto seven years and does not fall within prohibitory clause of Section 497 Cr.P.C. In support of his contention, he has placed reliance upon the cases reported as 2021 YLR Note 85, 2020 P Cr L J Note 21 and PLD 2017 (SC) 733 and submits that applicants have been involved falsely on suspicion being brother of Complainant and requests for confirmation of bail.

4. Learned Counsel for the Complainant submits that since the offence was allegedly committed by the brother of complainant, therefore, she firstly approach the accused person for return of articles and cash amount; however when they refused, such FIR was registered. He further submits that before registration of FIR, two applications under Section 22-A Cr.P.C filed by the applicant wherein theft of the articles has been admitted by them. He further contended that no malafide has been pointed out, therefore, they are not entitled for concession of bail.

5. Learned DPG conceded for confirmation of bail on the ground that from the contents of FIR, it is clear that FIR was registered on the basis of some suspicious which as per FIR came to know on 18.06.2021 to the Complainant and there is no eye witness of the alleged offence.

6. I have heard learned Counsel for the Applicant, Counsel representing the Complainant and learned Additional PG as well and have perused the record with their able assistance.

7. Admittedly there is delay of 17 days in registration of FIR and the same has not properly been explained by the complainant; there is no eye witness of incident; the offence is punishable upto seven years which does not fall within prohibitory clause of Section 497 Cr.P.C. and grant of bail in these case is right while refusal is an exception as has been held by Honourable Supreme Court of Pakistan in cases of Tarique Bashir V. State (PLD 1995 SC 34), Zafar Iqbal V. Muhammad Anwar (2009 SCMR 1488), Muhammad Tanveer V. State (PLD 2017 SC 733) and Shaikh Abdul Raheem V. The State etc (2021 SCMR 822).

8. The Honourable Supreme Court in case of Muhammad Imran (Crl.P.860-L/2021) vide order dated: 05-08-2021 has formulated the grounds for the case to fall within the exception meriting denial of bail in the cases which do not fall within prohibitory clause of Section 497 Cr.P.C as (a). the likelihood of the petitioner’s abscondence to escape trial; (b) his tampering with the prosecution evidence or influencing the prosecution witnesses to obstruct the course of justice; or (c) his repeating the offence keeping in view his previous criminal record or the desperate manner in which he has prima facie acted in the commission of offence alleged. Further Honourable Supreme Court held in the said order that the prosecution has to show if the case of the petitioner falls within any of these exception on the basis of the material available on the record. In the case in hand the prosecution has failed to establish any of the above ground meriting denial of the application of the applicant. It is also settled by the Apex Courts that deeper appreciation of the evidence is not permissible while deciding the bail application and the same is to be decided tentatively on the basis of material available on the record. From the tentative assessment of material placed before this Court, the applicants have made out their case for confirmation of their pre-arrest bail. Resultantly, instant Cr. Bail Application is allowed. Interim pre-arrest bail granted to the applicants vide order dated 20.08.2021 is hereby confirmed on same terms and conditions.

9. Observations made herein are tentative in nature and shall not prejudice the case of either party at the trial stage.

JUDGE

Faisal Mumtaz/PS