IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Criminal Bail Appln. No. S-36 of 2023

Applicant	Noor Muhammad Jarwar
	Through Mr. Asif Ali Abdul Razak Soomro, advocate
State	Mr. Aitbar Ali Bullo, D.P.G for the State
Date of hearing	16-03-2023
Date of order	16-03-2023

ZULFIQAR ALI SANGI, J.- Through instant criminal bail application, the applicant/accused Noor Muhammad Jarwar seeks post arrest-bail in Crime No.04/2022, registered at Police Station A.C.E Kambar-Shahdadkot @ Kambar, for the offence U/S 409 P.P.C r/w Section 5(2), Act-II of 1947, after rejection of his bail plea by the learned Special Judge Anti-Corruption (Provincial), Larkana vide order dated 10.11.2022.

2. The facts of the incident are mentioned in the memo of bail application and the copy of F.I.R. is also attached with the bail application, hence, needs not to reproduce the same here.

3. Learned counsel for the applicant/accused submits that prior to registration of F.I.R, applicant received show cause notice, which has been replied by him and shortage, if any, for which he has already deposited the entire amount as alleged in the F.I.R. He further submits that since nothing is outstanding against him and applicant has not mis-appropriated the wheat, however, the misappropriation will be decided by the trial court after recording of evidence as to whether it was misappropriation or shortage. He has, therefore, prayed that the applicant/accused be released on post-arrest bail.

4. Learned D.P.G. has vehemently opposed for grant of post-arrest bail on the ground that applicant has misappropriated huge amount of government and punishment provided U/S 409 P.P.C is life, though he has paid the amount, however, he is still liable to be convicted. Therefore, at this stage, the applicant is not entitled for grant of post-arrest bail.

5. Heard learned counsel for the applicant, learned D.P.G. and perused the material available on the record with their able assistance.

6. From perusal of material available on record, it reflects that it is a shortage and if it is mis-appropriation, the same will be decided by the trial court after recording evidence. However, the applicant has deposited entire amount alleged against him to the department, therefore, the department has no any loss.

7. Section 409 P.P.C provides punishment for life or with imprisonment of either description for a term which may extent to ten years, and shall also be liable to fine. While deciding bail application, lessor sentence is to be considered. Since lesser punishment U/S 409 P.P.C is from 0 to 10 years, therefore, the offence for which the applicant has been involved does not come within the prohibitory clause of Section 497(2) Cr.P.C.

8. In Shahmoro's case 2006 YLR 3167, while considering the lesser sentence of the offence, this Court granted bail to the accused. At bail stage, only a tentative assessment is to be made and deeper appreciation is not permissible. On 19.10.2022 the interim challan has been filed before the learned trial Court.  The entire prosecution case is based upon the documentary evidence which is already in possession/collected by the investigating officer and there is no apprehension that the same will be tempered by the applicant/accused. I am of the considered view that applicant has succeeded to make out a case for grant of bail as there are no reasonable grounds to believe that he has committed the offence punishment with death, imprisonment for life or 10 years.

9. Accordingly, instant criminal bail application is allowed. The applicant/accused is admitted on post-arrest bail subject to furnishing solvent surety in the sum of Rs.100,000/- (Rupees one hundred thousand only) and P.R bond in the like amount to the satisfaction of trial court.

10. Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the learned trial court while deciding the case of either party at trial.

J U D G E

Abdul Salam/P.A