IN THE HIGH COURT OF SINDH AT KARACHI

Present:

Mr. Justice Fahim Ahmed Siddiqui

Criminal Bail Application No. 1320 of 2016

Muhammad Akbar………………………………...…………………..Applicant

Versus

The State…………………………….……………..……………….Respondent

Date of Hearing & Order : 20.02.2017

Mr. Atta Muhammad Khan, advocate for the Applicant

Mr. Shujaat Ali Khan, advocate for the Complainant

Mr. Ali Haider Saleem, APG for the State

O R D E R

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FAHIM AHMED SIDDIQUI, J: The above named applicant is seeking pre-arrest bail in a case registered against him at PS Mauripur ACLC vide Crime No.55/2016 under Section 381-A Cr.P.C.

2. The allegation against the applicant is that he has taken part alongwith main accused persons in connection with theft and disposal of Trailer of the complainant bearing registration No. TLP-158, which was purchased by him on installments.

3. Learned counsel for the applicant has made his submissions at length. The gist of his arguments is that the incident has taken place on 28.04.2016 while FIR was lodged on 03.05.2016 i.e., after delay of 06 days; the applicant is not nominated in FIR and he was involved on the statement of co-accused which is inadmissible under Article 38 and 39 of Qanun-e-Shahadat Order, 1984; the applicant is a mechanic and engine of trailer was brought to him for repair and for the same reason, it was opened and he was totally unaware of the fact whether the same belongs to the stolen trailer. In the instant matter, three nominated accused persons have got bail after arrest from learned trial Court as such rule of consistency attracts to the case of applicant. He has relied upon 2008 MLD 528.

4. Learned counsel for the complainant with the permission of the Court made his submissions. Briefly, his arguments are that there are famous ingredients of false involvement i.e., malafide and ulterior motive for the relief of pre-arrest bail and the same have neither been argued nor available to the applicant in the instant matter. Recovery has been effected from the applicant, as such, involvement of the applicant in the instant matter is established. It is made a routine in such type of incidents that heavy vehicles are being stolen and dismantled with the help of persons like applicant/accused. Co-accused persons have been granted bail after arrest as their case is distinguishable to the case of present applicant. Learned APG for the State adopted the arguments advanced by learned counsel for the complainant and in addition to the same, he submitted that rule of consistency is not available to the applicant and Article 40 of Qanun-e-Shahadat Order, 1984, corroborates the offence against the applicant in the shape of recovery from him, therefore, he is not entitled for bail.

5. I have heard the arguments and have gone through the material placed before me. In the instant matter, name of the applicant is not mentioned in FIR and he was involved on the statement of co-accused. Contention of the applicant that engine was brought to him for repair as he is a mechanic and at the time of recovery of engine, the same was found in open condition, is found correct. The plea of the applicant being mechanic that engine was brought to him for repairing is supported by the fact that recovery was effected on 16.07.2016 while as per co-accused, engine was handed over to him on the second day of incident. Involvement of the applicant on the statement of co-accused is also inadmissible under the provisions of Qanun-e-Shahadat Order, 1984. In the instant case, co-accused have been granted bail and usually when co-accused have succeeded in getting bail after arrest then pre-arrest bail is not declined. In this respect, I would like to take reliance from 1986 SCMR 1386 and 2000 P.Cr.L.J 1482. In the instant matter, recovery has already been effected as such the applicant is no more required for the purpose of recovery.

6. In these circumstances, the applicant is entitled for bail before arrest. As such, the order dated 09.09.2016 for interim pre-arrest bail is hereby confirmed on the same terms and conditions.

JUDGE