ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA.

Cr. Bail Appln. No.S- 652 of 2023.  

Date of hearing                                Order with signature of Judge.

1.For orders on office objection as flag A.

2.For hearing of  bail application.                        

 Applicant

( Mirzan Khan& another):   Through Mr. Suhendar Kumar advocate holding

                                                brief for Mr.Mohsin Ali Khan Pathan, advocate a/w

                                                applicants (on bail).            

The State                      :        Through Mr. Ali Anwar Kandhro,  Addl. P.G.

Complainant                             :       Through Mir Ahmed Raza A. Sundrani, advocate  

(Muhammad Toufiq)            a/w complainant.

Khan

Date of hearing            :       07.12.2023.

O R D E R.

MUHAMMAD SALEEM JESSAR-J.:-Through this application, applicants seek their admission on pre arrest bail in Crime No.256 of 2023 of P.S A-Section Kandhkot, for offences under Sections 462-B, 462-F, r/w Section 511, PPC. Applicants filed anticipatory bail application before the Court of Sessions which was heard by learned Sessions Judge, Kashmore @ Kandhkot vide Cr.Bail Appln. No.318 of 2023 where initially applicants were granted ad interim pre arrest bail vide order dated 17.10.2023 and then after hearing the parties its confirmation was declined vide order dated 24.10.2023, hence this application has been maintained.

2.                    Briefly the facts of the prosecution case against the present applicants is that on 13.10.2023 complainant Mohammad Toufiq Khan, Special Security Officer, PS-3 Shikarpur lodged FIR alleging therein that on 12.10.2023  Line Walker Sadaruddin while checking  PARCO Pipeline when reached at the lands of Khair Mohammad Jafferi village Bahoo Sabzoi, he found water mixed with diesel  and reported the matter to complainant on mobile phone on which he  sent relevant staff/technical team as well as police party who reached at pointed place and he himself also reached there  at 1115 hours  where  on digging earth they found Iron Rod L type (6 inches in height and 4 mm wide) was affixed there and leakage was found in PARCO Pipeline. Matter was reported to high ups who directed him to lodge FIR, therefore, after repairing pipeline, one Iron Rod (L) 6 inches, diesel mixed with water in two jharicans were handed over to police and such mashirnama was prepared and then he approached P.S and lodged the FIR that some unknown persons  attempted to commit theft of oil by affixing clip and also  have caused damage to Pipeline. It was further stated in the FIR that  per Line Walker Sadaruddin 1.Mirzan @Khan and 2.Gul Khan (present applicants)  are farmers of landlord Khair Mohammad Jafferi who alongwith landlord Shahmore, his cousin Rehmatullah Sabzoi  always remain present at the landed property, who may be made part of investigation.

3.                    Applicants are present in person on bail however, their counsel Mr.Mohsin Ali Khan Pathan, as intimated by Mr.Suhendar Kumar Advocate is out of station, therefore, he holds brief and submits that the case against the applicants requires further enquiry as there is no direct role attributed to the present applicants as they have been falsely implicated in this case  for only being farmers of the landlord who owns the lands where  PARCO Pipelines pass through and allegedly some unknown persons tried to commit theft and no incriminating article is shown to have been recovered from their possession or any dwelling house belongings. Besides, he urged that for alleged theft the punishment provided by the law is not specific.

4.                     Learned Addl. P.G though opposes the grant of bail however,  submits that punishment provided by the law for the offence with which applicants have been charged may extend to 14 years. 

5.                     Mr. Mir Ahmed Raza Sundrani opposes the bail application and submits that they are farmers of the land owners where from the pipeline has been laid down, hence the applicants are responsible for the oil theft. He however, could not controvert  the fact that  no equipment or particular weapon used in committing  theft of oil was recovered from the possession of the applicants.  In  support of his contention he has placed  his reliance upon the case of Mohammad Eijaz  v. Abid Hussain and another (2021 SCMR 552) wherein bail granted by the High Court was recalled by the Apex Court in terms of Section 497 (5) Cr.P.C.

6.                    I have heard learned counsel for the parties and perused the material brought on record. It appears that there is no eye witness of the incident of alleged attempt to commit theft of oil from PARCO Pipeline. Applicants have been implicated only because of the reason that they are farmers of the landlord who owns land where from the PARCO Pipeline has been laid down and allegedly attempt to commit theft was made by some unknown accused, which can not be made sole basis for holding the applicants responsible for alleged offence. 

7.                    In the  case of Mohammad Eijaz (Supra),  it has been observed that a huge quantity was stolen therefore, bail granted to the applicants  was recalled. However, in instant case, per learned counsel for the complainant he does not know as to how much quantity of oil has been stolen away rather attempt has been shown. Hence in my view case relied upon by learned counsel for the  complainant is on different footing than  that of present case in which allegedly some unknown accused  have tried to commit theft of oil.  Since it was mere an attempt and no theft or offence was committed, besides, the case has been challaned and the applicants after furnishing surety have joined trial proceedings, where no complaint with regard to misusing concession of bail has been brought on record. Hence, case against applicant requires further enquiry. In case the prosecution after recording evidence may succeed to prove its charge then the trial Court would be competent to pass any appropriate judgment. It is well settled principle of law that every accused would be presumed to be blue eyed boy of the law until and unless he may be found guilty and law cannot be stretched upon in favour of prosecution particularly at bail stage.

8.                    Accordingly and in view of above, I am of the view that case against the applicants requires further enquiry, therefore, they are entitled for the bail sought for. Consequently, instant bail application is hereby allowed. Interim pre arrest bail granted earlier vide order dated 07.11.2023 is hereby confirmed on the same terms and conditions.

9.                    Needless to say that observations made hereinabove are tentative in nature for disposal of instant bail application only which shall not prejudice the case of either party while deciding fate of the case by the trial Court on conclusion of trial.

JUDGE 

Shabir