ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Criminal Bail Application No. 1253 of 2016

 

Applicant:                             1. Amjad Abbasi and 2. Ajmal Abbasi both sons of

                                                Aslam Abbasi through Mr. Abdul Haleem Jamali,

                                                Advocate.

 

Respondent:                          The State, through Mr. Abdullah Rajput, APG.

 

Complainant:                        Muhammad Nawaz Khan Niazi s/o. Haji Bashir

                                                Jan Khan, through Mr. Amir Nawaz Warich,

                                                Advocate.

                                               

Date of hearing:                    06.02.2017

Date of order:                        06.02.2017

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O R D E R.

 

Zafar Ahmed Rajput, J:-     Having rejected their earlier bail before arrest application bearing No. 647 of 2016 by the learned Ist Additional Sessions Judge, Karachi Central, vide order dated, 24.08.2016, the applicants/ accused, namely, Amjad Abbasi and Ajmal Abbasi both sons of Aslam Abbasi, through instant criminal bail application have sought pre-arrest bail  in Crime No. 199 of 2015, registered at PS Sharifabad, Karachi, under Section 420/417/504/506/34 P.P.C.   He was granted ad-interim bail by this Court vide order dated 01.09.2016, now he seeks confirmation of his bail.

 

2.         It is alleged that the applicants/accused and absconding co-accused, namely, Akmal Abbasi on 20.09.2013 obtained Land Cruiser bearing Registration No. BD-5557 from the complainant, who is a transporter, for some time but the same was not returned to him and on demand of the complainant accused persons used abusive language. The alleged F.I.R. was initially registered under sections 420/417/406/504/506/34 P.P.C., but after the investigation Section 406 P.P.C. was also inserted in final report under Section 173 Cr.P.C.

 

3.         The learned counsel for the applicants/accused has mainly contended that the applicants are innocent and have falsely been implicated in this case by the complainant with mala fide intention and ulterior motive, that there is delay of more than two years in lodging the FIR, for which complainant has not furnished any plausible explanation; that the complainant has not taken up the matter before CPLC; that the vehicle in question was sold by the complainant to one Safeer, which is still in his possession and co-accused Akmal, the brother of applicants,  is serving as driver of said Safeer and even said Safeer was willing to appear before the trial Court alongwith vehicle but due to the threats to his life by the hands of complainant he did not make his appearance; that all the sections except Section 406 P.P.C. are bailable; that Section 406 P.P.C. was inserted by the police after investigation, which is punishable for seven years; as such, the same does not fall within the prohibitory clause of Section 497 Cr.P.C.; that the case of the applicants is fit for further enquiry; as such, the applicants are entitled for confirmation of bail.

 

4.         On the other hand, learned counsel for the complainant has vehemently opposed this application on the ground that the applicants are nominated in the F.I.R. by name, who were given a Land Cruiser vehicle by the complainant for few days, but they cheated the complainant. He has also submitted that even the applicants have admitted in their bail application that the said vehicle was sold out to one Safeer, which is still in his possession and he is ready to come to the Court to show the legal possession of the same, but till date the said Safeer has not appeared before the Court to support the contention of applicants.

 

5.         Learned APG while adopting the arguments of learned counsel for the complainant has also opposed the grant of bail and submitted that sufficient material is available with prosecution to connect the applicants with the commission of alleged offence and under the circumstances of the case they cannot claim bail as a matter of right.

 

6.         I have heard the learned counsel for the parties and perused the material available on record.

 

7.         It is admitted position that the alleged incident took place on 20.09.2013 while the F.I.R. was lodged on 27.10.2015 i.e. after more than two years and no plausible explanation has been furnished by the complainant for such inordinate delay.  The F.I.R. itself does not disclose the ownership of the vehicle with the complainant. Even it is not transpired if any efforts were taken during course of the investigation for seizing or recovery of the alleged vehicle with the help of CPLC.  Offences under Section 420, 417, 504, 506 P.P.C. are bailable under the schedule of offence, while offence under Section 406 P.P.C. is punishable with imprisonment of either description for a term of seven years; however, it is yet to be proved if the applicants were entrusted in any manner with the alleged vehicle and they have misappropriated the same, so also the evidence is needed to be recorded to determine as to whether the vehicle was voluntarily delivered by the complainant, which constitute the offence of criminal breach of trust, or the complainant was deceitfully induced to part with the vehicle, which act falls within the ambit of cheating. Under the circumstances, the case requires further probe by the trial Court; hence, the interim bail granted to the applicants vide order dated 01.09.2016 is hereby confirmed on same terms and conditions.

 

8.         Needless to mention here that the observations made herein-above are tentative in nature and would not influence the trial Court while deciding the case of applicants on merits. 

JUDGE

Athar Zai