ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD

                                          Cr.B.A.No.S-  462  of 2011

DATE                                     ORDER WITH SIGNATURE OF JUDGE

19.08.2011.

Mr. Fazal Qadir Memon, Advocate for applicant.

Syed Meeral Shah, D.P.G for the State.

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            Applicant Mevo Rind alongwith others has been booked in Crime No.24/2011 of P.S Shahdadpur for offence U/s 395, 435 and 504 PPC and through instant application, he seeks post arrest bail as his bail plea has been turned down by the trial Court vide order dated 18.3.2011.

            According to prosecution case, on 30.11.2010, applicant alongwith co-accused Chanesar, Moharram, Gul Hassan, Waloo, Raboo, Malook, Mithal and Asif came on the lands of Wahid Bux where his hari Sarang ws present. Out of them applicant Mevo was armed with hatchet while rest of the accused were armed with pistols, hatchets and guns. It is alleged that on gun point accused loaded 100 Monds Chaff in a tractor trolley while the remaining Chaff lying at the land was set on fire. The F.I.R. was registered on 20.1.2011. The motive behind this occurrence is dispute over the piece of land between the parties.

            Per learned counsel, applicant is innocent and has no nexus with the alleged offence; neither such incident has ever taken place nor the present applicant participated in the said occurrence; though the alleged incident taken place on 30.11.2010 but the F.I.R. has been registered on 20.1.2011 with the delay of 50 days; applicant alongwith his son Raboo and other accused who are his close relatives, has been implicated in this false case. He lastly contended that though the F.I.R. was registered U/s 17(3) EHO, 435 PPC, however the challan has been submitted U/s 395, 435 and 504 PPC as during the course of investigation police could not collect any material connecting the present applicant with the commission of offence. Conversely, Syed Meeral Shah, learned D.P.G for the State opposed the bail application on the ground that name of the applicant appears in the F.I.R. and he alongwith co-accused participated in the alleged incident.

            From the material available on record, it appears that alleged incident has taken place on 30.11.2010 whereas the F.I.R. was lodged on 20.1.2011 under the orders of Additional Sessions Judge but it does not reflect that after incident complainant approached the concerned Police Station and police refused to register his case. Even from the contents of F.I.R. it reveals that after occurrence, complainant apprised the facts to his landlord Wahid Bux and then moved an application before the concerned Sessions Judge for registration of F.I.R. A perusal of mashirnama of wardat reveals that some Chaff had been taken away whereas some Chaff was set on fire. It is very strange and does not attract to prudent mind that how, after such long time, the police found the ash of Chaff which was set on fire or came to the conclusion that some Chaff was taken away. In the F.I.R. it was alleged that after loading the Chaff in the tractor trolley, the remaining Chaff was set on fire by the accused party but it is a mystery that how the ash of such burnt Chaff was found at the place of occurrence even after more than 50 days which could be disappeared with the passage of time. Applicant has been challaned U/s 395, 435 and 504 PPC. Section 395 PPC provides punishment with imprisonment for life or rigorous imprisonment for a term not less than 04 year nor more than 10 years whereas Section 435 and 504 PPC do not carry punishment beyond 07 years and do not fall within the prohibitory clause of Section 497 (1) Cr.P.C. Since section 395 PPC provides alternate sentence and in Shahmoro’s case (2007 U.C 875) while considering the lesser sentence as provided in Section 395 PPC, this Court granted bail to the accused in some what similar circumstances. Since the F.I.R. in above case has been registered with inordinate delay without furnishing any explanation and during investigation, no incriminating article has been recovered from the rpesent applicant. In view of above and the dictum laid down in Shahmoro’s case (Supra), I am of the considered view that applicant has succeeded to make out a case for bail as there are no reasonable grounds to believe that he has committed the offence punishable with death, imprisonment for life or 10 years. Consequently, the application is granted. Let the applicant be released on bail on furnishing a solvent surety in the sum of Rs.100,000/- (One lac) and P.R Bond in the like amount to the satisfaction of the trial Court.     

                                                                                                JUDGE

Tufail