Cr. Bail Application No.S-454 of 2012.

For hearing.

7.8.2012. Mr. Qurban Ali Malano advocate for the applicant.

Mr. Syed Sardar Ali Shah A.P.G.

Applicant/accused Fayaz Hussain seeks bail in Crime No.51/2012 registered against accused at Police Station Naushahro Feroze on 18.3.2012 for offences U/S 380, 457, 34 PPC.

The brief facts leading to filing of instant bail application are that complainant owns Arms and ammunitions shop. On the night of incident, complainant while closing his shop went to the home and opened the shop on the next morning at 9.00 a.m. He found that arms were lying scattered and there was breach in the wall of the shop. In the meanwhile p.ws Manthar Ali and Deedar Ali came in the shop of the complainant, they also saw the arms and ammunitions as mentioned in FIR were in the scattered position. It is alleged that the complainant found foot prints on the roof of the shop, so also back side of his shop, foot prints were tracked which dis-appeared at the house of applicant/accused Fayaz Hussain s/o Niaz Hussain Memon. It is alleged in the FIR that applicant/accused admitted that he had committed theft of weapons alongwith co-accused Shahbaz S/o Ranjho and Saleh S/o Muhammad Budhal and 2 other persons and promised the complainant to return the same after a few days, complainant was kept on false hopes and but weapons were not returned, the complainant finding no way, went to Police Station N. Feroze and lodged FIR against the accused persons as mentioned above.

After usual investigation challan was submitted U/S 457,380, 411 PPC. Bail Application on behalf of the applicant/accused was moved before the Court of Ist. Civil Judge and Judicial Magistrate Nausharo Feroze which was dismissed vide order dated 6.4.2012, thereafter the bail application before the learned Sessions Judge N. Feroze was submitted and the same was also dismissed vide order dated 20.4.2012, hence the present bail application has been filed before this Court.

Mr. Qurban Ali Malano learned counsel for the applicant/accused Fayyaz Hussain mainly contended that actual theft was un-witnessed and evidence of foot prints is a weak piece of evidence. Some stolen Arms have been foisted upon applicant during investigation and at the most the offence U/s 411 PPC is made out against the applicant/accused. It did not fall within the prohibitory clause of Section 497 Cr.P.C. He has also referred to an application U/s 491 Cr.P.C submitted by the mother of the applicant before Sessions Judge Nausharo feroze in order to show that the applicant/accused was detained by police before registration of the FIR. Lastly it is contended that co-accused Shahbaz Ali has been granted bail by trial court and case of applicant/accused is identical. In support of his contentions learned counsel for the applicant/accused has placed the reliance upon case of Muhammad Nasir Vs. The State (2010 P.Cr.L.J 704).

Mr. Syed Sardar Ali Shah learned A.P.G conceded to the contentions raised by learned counsel for the applicant/accused and very rightly and frankly submitted that at the most offence falls U/s 411 P.P.C against the applicant/accused, which does not fall within the prohibitory clause of Section 497 CrP.C.

I am inclined to grant bail to the applicant/accused Fayaz Hussain for the reason that actual theft was unwitnessed. During investigation it is stated that the applicant/accused produced some stolen arms to police. Prima facie allegation against applicant was only of possessing of stolen articles which offence fall U/S 411 PPC, punishable for three years and also does not fall within prohibitory clause of Section 497 Cr.P.C. Co-accused Shahbaz Ali more or less on same allegations has also been granted bail by the trial court. The applicant is in jail since 19.3.2012. It was also argued that the applicant/accused was wrongfully detained by SHO P.S. Nausharo Feroze before the registration of FIR. Applicant/accused is no more required for investigation. The challan has been submitted before the trial court. In these circumstances, a case of further inquiry as envisaged in sub-section (2) of Section 497 Cr.P.C is made out. Therefore, the applicant/accused Fayaz Hussain S/o Niaz Hussain Memon is admitted to bail subject his furnishing solvent surety in sum of Rs. 100,000/- (Rupees One Lac only) and P.R bond in the like amount to the satisfaction of trial court.

Needless to observe that observations made herein above are tentative in nature and the trial court shall not be influenced by any of such observation and shall decide the case strictly on merits on the basis of evidence in accordance with law.

Cr. Bail Application No.454/2012 stands disposed of.

JUDGE.

M.F.