IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA  

Criminal Bail Application No. S- 124 of 2021.

Applicant:                   Talib Husssain Chachar,

Through Messrs.Safdar Ali Bhutto, Asif Ali Abdul Razak Soomro and Mushtaq Ali Langah, Advocates.

Complainant:               Inspector Shahid Bashir Khoso,Circle Officer ACE, Kandhkot.

D.P.G                          Mr. Muhammad Noonari.

Date of hearing:          12.07.2021.

Date of Order:                        12.07.2021.

O R D E R

Adnan-ul-Karim Memon, J. Through the captioned bail applicationunder Section 497 Cr.P.C, the applicant Talib Hussain Chachar is seeking post-arrest bail in respect of cognizable offense registered on 05.02.2021 on behalf of Inspector Shahid Bashir Khoso, Circle Officer ACE, Kandhkot at Police StationACE Kashmore @ Kandhkot, being FIR No. 01/2021, under Section409, 34,  PPC read with Section 5(2) of the Prevention of Corruption Act-II of 1947,with an unsuccessful attempt to secure bail in that regard having earlier been made vide like application preferred before the learned Special Judge, Anti-Corruption, Larkana, where the case is stated to be pending.

Concisely the version of the events depicted in the aforesaid crime, the accusation against the applicant is that of guarding the huge quantity of wheat when the alleged raid was conducted by the Anticorruption police. Such report of the incident was made before the concerned Police station on 05.02.2021. However, the applicant was arrested and booked in the aforesaid crime. He being aggrieved by and dissatisfied with his arrest in the aforesaid crime preferred bail application No.08 of 2021 before the learned Special Judge Anti-Corruption Larkana, however, his plea was rejected vide order dated 23.02.2021 on the ground that he is connected with the offense charged with.

Learned counsel for the applicant has mainly contended that the applicant is innocent and has been falsely implicated by Anticorruption policedue to mala fide intention and ulterior motives; that nothing was recovered from the possession of the applicant during investigation. He further argued that  to constitute an offence under section 409, P.P.C. there must not only be entrustment but dishonest, misappropriation or conversion to one's own use or dishonest disposal of property by the offender, which factum is lacking in the present case, on the ground that the applicant was found near Food Godown Dera at evening hours. Per learned counsel this is hardly a ground to refuse him bail. Even there is no material to establish that the respondent-department sustained any loss attributable to the applicant on account of alleged transportation of wheat for his personal use in between the period of 07.1.2021 to 18.1.2021; that there is delay of 18/19 days in lodgment of FIR without any explanation. He next contended that the case of applicant for grant of bail on the ground of further inquiry as contemplated in section 497(2), Cr.P.C is made out. He added that the applicant is behind the bars since his arrest, therefore, the applicant could not be detained in jail for indefinite period. As such, the applicant is entitled for concession of post arrest bail in the aforesaid crime.

On the other hand learned D.P.G has opposed this bail application by submitting that prima facie case is made out against applicant/ accused, as he was caught red-handed while guarding the wheat stock when the trap party conducted the raid.

To assess and evaluate the grounds agitated on behalf of the parties, it is well settled principle of law that at bail stage deeper appreciation of evidence cannot be gone into, but a bird-eye view is to be taken to available record before the Court to satisfy prima-facie whether accused is/ are connected with commission of offense or not. Even otherwise, benefit of doubt will go to accused even at bail stage, if he makes out a case for the aforesaid concession. Keeping in view the above principle,the learned counsel for the parties have been heard andrecord has been perused.

It is noted that the applicant/ accused has been booked in this case under section under section 409, 34P.P.C read with section 5(2) of the Prevention of Corruption Act-II-1947. To constitute an offence under section 409, P.P.C. there must not only be entrustment but dishonest, misappropriation or conversion to one's own use or dishonest disposal of property by the offender, which factum prima facie is lacking in the present case, on the premise that the applicant was found near Food Godown Dera at evening hours. The FIR is delayed for 18/19 days. The applicant is reportedly behind the bars since his arrest i.e. 07.01.2021 and challan of the case has been filed, therefore, his custody is no more required for the purpose of investigation. Though these offences are not bailable and their punishment do fall within the prohibitory clause of section 497, Cr.P.C. however, the learned trial court has to look into the ingredients of section 409 PPC and in such circumstances, grant of bail is a rule as held by the Hon'ble Supreme Court of Pakistan in its various pronouncements and its refusal an exception; no exceptional circumstances appear in this case to withhold the bail of the applicant, merely due to his presence at the place of incident as watchman. Even there is no material to establish that the respondent-department sustained any loss attributable to the applicant on account of alleged transportation of wheat for his personal use in between the period of 07.1.2021 to 18.1.2021. The aforesaid grounds attracts subsection (2) of section 497 Cr. P.C.

For the above reasons,the applicant Talib Hussain has made out a case for post-arrest bail in FIR No. 01/2021 of Police station ACE Kashmore @ Kandhkot, under Sections 409, 34, PPC read with Section 5(2) of the Prevention of Corruption Act-II of 1947.Accordingly, the applicant shall be released on post-arrest bail in the aforesaid crime subject to furnishing his bail bond in the sum of Rs.50,000/- (Fifty thousand rupees) with one surety and P.R bond in the like amount to the satisfaction of the learned trial Court.

Needless to mention here that any observation if made in this order is tentative in nature and shall not affect the merits of the case. It is made clear that in case if during proceedings the applicant/ accused misuses the bail, then trial Court would be competent to cancel the bail of the applicant without making any reference to this Court.

These are the reasons for my short order dated 12.7.2021, whereby the applicant was allowed post arrest bail in the aforesaid crime.

JUDGE