ORDER SHEET
IN THE HIGH COURT OF SINDH,CIRCUIT COURT, HYDERABAD.
Criminal Bail Application No.S-575 of 2009
DATE ORDER WITH SIGNATURE OF JUDGE
FOR HEARING
11.12.2009.
Mr. Hussain Bakhsh Solangi, advocate for applicant.
Mr. Shahid Ahmed Shaikh, A.P.G, Sindh along with ASI Shah Nawaz Otho, SIO PS Sehwan, and ASI Ali Asghar Abro, PS Rukan.
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MR. AHMED ALI SHAIKH, J. Applicant Shah Nawaz seeks post arrest bail in crime No.76 of 2009 of PS Rukkan, District Dadu, offence under section 412 PPC.
2. The bail plea of the applicant has been turned down by the trial Court vide order dated 20-08-2009.
3. In nutshell, the prosecution case is that on 07-04-2009 the applicant was arrested while sitting in 10 wheeler Truck, which was robbed from the complainant Manzoor Hussain, within the jurisdiction of PS Sehwan, for which a case bearing crime No.41 of 2009 was registered at PS Sehwan. The applicant was arrested and the 10 Wheeler Truck was taken into custody by the police and case under section 412 PPC was registered against the applicant.
4. It is, interalia, contended by the learned counsel for applicant that the applicant has been shown as one of the accused in crime No.41 of 2009 of PS Sehwan and in respect of same property, another case bearing crime No76 of 2009 has been registered by the police with malafide intention. Learned counsel further contended that so for the applicability of section 412 PPC is concerned, same is not applicable to the case in hand as ingredients of section 412 PPC are missing. He further submitted that in view of principle laid down by Honorable High Court in the case of Ahmed-ud-Din.Vs.The State (1998 CrLJ 721), the case of the applicant requires further inquiry, as it is yet to be determined whether the offence falls under section 411 PPC or 412 PPC
5. Learned State counsel, half heartedly opposed the bail plea of the applicant stating that the robbed property has been recovered from the possession of applicant and therefore, he does not deserve for the concession of bail.
6. Heard learned counsel for the parties and perused the record.
7. Per prosecution the applicant was arrested along with the property, which is subject matter of crime No.41 of 2009 of PS Sehwan and the record reveals that he has been shown as one of the accused in above case. On the basis of same property he has been booked in this case under section 412 PPC. Apart from the fact whether the applicant could be challaned for committing the Harraba as provided under section 17 (3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979 as well as under section 412 PPC. The dictum laid down by the Divisional Bench of this Court in Ahmed-ud-Din’s case (supra), it is yet to be determined whether the offence for which applicant has been charged falls under section 411 PPC or 412 PPC.
8. From the plain reading of the provision of section 412 PPC there is no ambiguity that a person can be charged for such offence;
“if he dishonestly receives or retains any stolen property, the possession whereof he knows or has reason to believe to have been transferred by the commission of dacoity, or dishonestly receives from a person, whom he knows or has reason to believe to belong or to have belonged to a gang of dacoits, property which he knows or has reason to believe to have been stolen”
9. Section 391 PPC provides the definition of “Dacoity: as under:-
“When five or more persons conjointly commit or attempt to commit a robbery, or where whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding is said to commit “dacoity”.”
10. From the contents of FIR bearing Crime No.41 of 2009, it transpired that the four unknown persons had deprived the complainant from his Truck along with loaded goods, therefore, in view of above facts and dictum laid down by the Divisional Bench of this Honourable Court in Ahmed-ud-Din’s case (supra), I am of the considered view that the case of the applicant requires further probe as it is yet to be determined whether the case for which applicant has been charged falls under section 411 PPC or 412 PPC. Section 411 PPC is punishable for three years and does not fall within the prohibitory clause of section 497 (1) Cr.P.C and in view of guidelines provided in Tarique Bashir’s case (PLD 1995 S.C 34) the applicant deserves the concession of bail.
11. For the foregoing reasons, the applicant is admitted on bail, subject to furnishing his solvent surety in the sum of Rs.100,000/- (Rupees one lac only) and PR Bond in the like amount, to the satisfaction of trial Court.
JUDGE.
A.C