ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Bail Application No.S-175 of 2022

 

 

 

Applicant:                                  Mujahid Hussain Shah, through

                                                  M/S Syed Shafqat Ali Shah Masoomi

                                                  and Deedar Ali M. Chohan, Advocates

 

  

State:                                         Through Mr. Khalil Ahmed Maitlo,

                                                  Additional Prosecutor General

                                      

Date of hearing:                         12.08.2022

 

Dated of order:                           12.08.2022

                                                 

O R D E R

 

Shamsuddin Abbasi, J:    Applicant / accused Mujahid Hussain Shah, seeks his  post-arrest bail in Crime No.04/2021, registered at Police Station ACE, Ghotki, for offence punishable under section 465, 467, 468, 471, 34 PPC r/w Section 5(2) Act-II of 1947 PPC, after rejection of his bail by learned trial court vide order dated 04.03.2022. 

2.                The allegation against the applicant is that he being principal Government Degree College Jam Mumtaz Hussain Ubauro from 11.07.2011 to 06.10.2017 prepared bogus admission forms in the name of Sadam Hussain, Muhammad Arslam and Muhammad Kashif in the year 2012 and allowed said beneficiaries in the examination on the basis of bogus documents in the first year (Pre-medical group).

 3.               It is contended by learned counsel for the applicant that there is delay of eleven (11) years in lodgment of FIR without plausible explanation; that beneficiaries of alleged incident were not implicated as accused in the challan-sheet; that applicant was serving as principle and is a law abiding citizen; that case of prosecution based upon documentary evidence; that applicant is in custody since 22.02.2022 and still challan has not been accepted by the trial court; that the offence does not come within the ambit of section 497 Cr.P.C; that there are sufficient grounds which make the case of applicant as one of further enquiry in terms of section 497 Cr.P.C.

 4.                On the other hand, learned Deputy Prosecutor General,  has contended that prior to registration of FIR an enquiry was conducted and applicant was found involved in this case and FIR has been lodged on the direction of this court; that in earlier orders passed by the learned trial court as well as by this court his pre-arrest bail was declined; that the applicant is not entitled for grant of bail.

 

5.               Heard learned counsel for the applicant as well as learned Deputy Prosecutor General and perused the material available on record.

 6.               Admittedly there is delay of 11 years in lodgment of FIR without plausible explanation as the alleged incident had taken place in the year 2012, whereas the FIR has been lodged in the year 2021. It is a matter of record that beneficiaries namely Saddam Hussain, Muhammad Kashif and Muhammad Arslan who have managed their fake admissions in the college through applicant were found innocent and their names have been placed in column-II of the challan but still no order has been passed on the challan by the learned trial court. No one can be kept incarceration for indefinite period. Applicant is government servant in BS-19 and there is no likelihood for his absdoncence. Applicant is in custody and is no more required for further investigation. Case of prosecution rests upon documentary evidence and all the PWs are officials, therefore question of tempering with the evidence does not arise. Sufficient grounds are available on record to make out a case of further enquiry in terms of section 497 Cr.P.C. Contention raised by learned DPG that earlier pre-arrest bail plea of the applicant was declined by this court, hence he is not entitled for post-arrest bail is not correct and is against the scheme of law for the reasons that considerations for pre-arrest and post-arrest bail are totally different in view of case law reported as Shah Nawaz v. The State (2005 SCMR 1899), relevant paragrapher is reproduced as under:-

                   “…….It is  now well-settled that considerations for pre-arrest and post-arrest bail are totally different, therefore, in our view the learned Judge had fallen in error to cancel the bail allowed to petitioner by the same Additional Sessions Judge.

                             As regards the facts of the case, perusal of F.I.R. shows that petitioner too was defrauded, we fail to understand as to how section 467, Pakistan Penal Code was attracted to the facts and circumstances of this case but as observed earlier, we would not like to touch the merits of the case because trial is yet to commence. It is submitted that challan has been submitted and the trial is likely to commence, as far as rest of the offences are concerned, obviously they do not fall within the prohibitory clause, therefore, by converting this petition into appeal, we allow the same with the consequence that interim bail allowed to the petitioner on 10th of April, 2003 is hereby confirmed, subject to furnishing fresh bail bonds by the petitioner in the sum of Rs.five lacs with one surety in the like amount to the satisfaction of the District and Sessions Judge, Gujranwala.”

                     

7.                In view of above, applicant has made out his case for grant of bail, therefore the application is allowed and applicant Mujahid Hissain Shah is admitted to post-arrest bail subject to his furnishing solvent surety in the sum of Rs.200,000/- (Rupees two lacs) and PR bond in the like amount to the satisfaction of trial court.

 

8.              The observations made hereinabove are tentative in nature and would not prejudice the case of any party at the trial.

 

 

 

 

J U D G E

 

 

 

 

 

Suleman Khan/PA