ORDER SHEET

IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA

Cr. B.A  No.S- 270   of 2012

DATE

ORDER WITH SIGNATURE OF JUDGE

 

 

06.11.2012

 

Mr. Faiz Mohammad Larik, advocate for applicant.

Miss Shazia Surahio, State counsel.

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Naimatullah Phulpoto, J. - Applicant/accused seeks pre-arrest bail in crime No.11/2012 registered at Police Station Rasheed Waggan under Sections 379, 462-B,    462-C, 427, PPC and 13 of Prevention of Anti National Activities, 1974.

 

2.         Brief facts of the prosecution case as disclosed in the FIR are that on 22.3.2012 at 2.30 p.m. Line Walkers namely Hubdar s/o Niaz Ali Janwari and Bakhat while checking the pipeline No.125+000 K.M reached at the lands of applicant Mumtaz Ali Lashari they found clip attached with the pipeline. Line Walkers suspected theft of oil through clip from pipeline and found theft of oil. Thereafter it is alleged that above named Line Walkers received spy information that applicant Mumtaz Ali Lashari, 2.Ashique Hussain and  3.Sajjad Ali had committed theft of the oil. Such information was conveyed to the complainant Admin Officer Parco Station No.3, Shikarpur. Thereafter FIR under the above referred sections was lodged against the applicant/accused and others under suspicion.

3.         Accused Sajjad Ali son of Mumtaz Ali was arrested on 27.3.2012. Statements under section 161, Cr.P.C of Line Walkers PWs Bakhat and Hubdar Ali were recorded on 04.4.2012. On the conclusion of investigation challan was submitted against the accused. Present applicant/accused was shown as absconder in the challan.

4.         Applicant/accused approached learned Sessions Judge, Larkana for pre-arrest bail but an application for pre-arrest bail was declined by learned 2nd Additional Sessions Judge, Larkana vide his order dated 30.5.2012. Thereafter applicant/accused Mumtaz Ali approached to this court.

5.         Mr. Faiz Mohammad Larik, learned counsel for the applicant mainly contended that theft of oil was un-witnessed, name of applicant has been mentioned in the FIR in suspicion. Statements under section 161, Cr.P.C of the witnesses were recorded after 12 days of the registration of FIR. Oil pipeline was passing through the land of the applicant, he has been falsely implicated by the complainant and police with ulterior motives. 

6.         Miss Shazia Surahio, State counsel conceded to the contentions raised by the learned counsel and recorded no objection.

7.         I am inclined to grant pre-arrest bail to the applicant/accused for the reasons that theft of oil was un-witnessed, name of the applicant was disclosed by the complainant on spy information. It is very strange that 161 Cr.PC statements of Line Walkers/PWs Hubdar Ali and Bakhat were recorded after 12 days of the registration of FIR for which apparently there is no explanation. Ingredients of alleged offences are yet to be determined at trial. As regards to the ingredients for  grant of bail before arrest are concerned, learned counsel for the applicant has argued that oil pipeline passes from the land of the applicant, complainant lodged FIR against the applicant and his son to save himself from responsibility. Serious malafide on the part of police have also been alleged on this case. During investigation absolutely no material has been collected to connect the applicant with the commission of the offence. The provisions of criminal procedure code confer discretionary jurisdiction of criminal courts to grant  bail to the accused pending trial. Since the jurisdiction is discretionary, it is required to be exercised with great care and caution by balancing valuable right and liberty of an individual and the interests of society in general. In granting or refusing the bail the courts are required to indicate, may be briefly the reason for grant or refusal of the bail. In this case reasons for refusal of the bail have not been recorded under the law, jurisdiction has not to be exercised in a casual and cavalier fashion. Serious malafide on the part of complainant and police have been alleged in this case and it is argued that as pipeline passes from the land of the accused he has been involved along with his son and police has made no efforts to arrest the real culprits involved in the commission of the offence.

8.         For my above stated reason s I have no hesitation to hold that prima facie a case for grant of pre-arrest bail is made out to the applicant/accused. Resultantly, interim pre-arrest bail already granted to the applicant/ accused is hereby confirmed on the same terms and conditions.

9.         Needless to say that the observations made hereinabove are tentative in nature and the trial Court shall not be influenced by such observations at the time of passing final judgment.

 

                       

                                                                                                            Judge

 

 

 

 

Abid Kazi/**