ORDER SHEET
IN THE HIGH COURT OF SINDH,
CIRCUIT COURT, HYDERABAD.
Cr. Bail Appl. No.743 of 2009
DATE ORDER WITH SIGNATURE OF JUDGE
04.12.2009.
Mr. Qalandar Bux Leghari, Advocate for applicant.
Syed Meeral Shah, D.P.G Sindh for the State.
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Ahmed Ali Shaikh J: The applicant Mohammad Ameen Zakriya, seeks post arrest bail, in crime No.97/2009 of PS Settlite Town, Mirpurkhas for the offence under section 395, 342, 448, 427, 506 (ii), 147, 148, 149, 465, 467 & 468 PPC.
2. The bail plea of the applicant has been turned down by the trial Court vide order dated: 23-11-2009.
3. The relevant facts leading to this bail application are that on 03-07-2009 one Ambar Shahab lodged the report at PS Settlite Town, Mirpurkhas stating therein that he is owner of a Factory Hyderabad Beverage Company, situated at Mirwah Road Mirpurkhas. On 26-06-2009 when he was present in his Factory, received a Phone Call from his house to the effect that his mother is seriously ill and admitted in Hospital, following which he left his employees at the Factory and gone to Karachi. Complainant further stated that apart from cash amount Rs.6,50,000/- and Mangoes worth Rs.3,75,000/- and 31 Drums of Mangoes pulp worth Rs.1,30,000/- were also lying in the Factory. On 28-06-2009 his employee Abdul Rehman informed him on Phone that on 28-06-2009 at 0015 hours about 15/16 persons forcibly entered in the Factory, out of which Ameen Zakriy and Zahir Hussain Shah were armed with T.T Pistols while rest of them were armed with Klashnikovs and Guns. Ameen Zakriya and Zahir Shah deprived his all employees from their Mobile Phones. Thereafter they took Rs.6,50,000/- from his Office and confined his employees in the Factory and later on, after issuing threats drove them out from the Factory. After receiving such information complainant left the Karachi for Mirpurkhas and at about 1500 hours, when he reached at his Factory, where he was not allowed to enter in the Factory by Ameen Zakriya and Zahir Shah. Accused Zahir Shah declared that he has got this Factory on lease for two years from Ameen Zakriya. The complainant approached the Sessions Judge, Mirpurkhas and ultimately registered the case under Court order.
4. After usual investigation, the applicant was sent up to face the charge vide charge sheet dated 01-09-2009.
5. It is, interalia, contended by the learned counsel for the applicant that the Factory in dispute was leased out by S.M. Shahabul Islam, Mrs. Iffat Shahab, Attiqur Rehman and Azfar Shahab owners of the Factory to the applicant Mohammad Ameen Zakriya for a period of five years vide lease deed dated 08-08-2008. It is further submitted that the possession of the Factory was also handed over to the present applicant by its owners and later on, the applicant Mohammad Ameen Zakriya has leased out the Factory to co-accused Zahir Shah for a period of two years through a lease agreement. In support of his contentions, he has placed the copies of lease agreements. It is further contended that one Azfar Shahab (brother of the complainant) has also filed a Civil Suit for Declaration, Settlement of Accounts, Recovery of Damages of Rs.50,00,000/- and Permanent Injunction against the applicant, which is pending adjudication before Ist Senior Civil Judge, Mirpurkhas. Per learned counsel, the applicant and Azfar Shahab (brother of the complainant) were partners and there is dispute between them in respect of settlement of the accounts, therefore, the complainant party has implicated the applicant in this concocted case in order to save their skin; since the dispute between the complainant party and applicant is going-on over the Factory, therefore, in order to get vacant possession of the Factory, the applicant has been dragged in this false case. The learned counsel further submitted that since the applicant is lawful lessee of the Factory in dispute, therefore, question of forcible possession, trespass or robbery does not arise. He further submitted that in the charge sheet sections 506 (ii), 465, 467 and 468 PPC have been deleted. So for the section 395, 342, 427 and other sections are concerned, those are not applicable in view of lease deed in favour of applicant, which has not been disputed by the complainant party before any forum, therefore, the case of the applicant requires further inquiry and he deserves the concession of bail.
6. Syed Meeral Shah, the learned D.P.G, Sindh for the State half heartedly opposed the bail but did not deny/dispute the documents relied upon by the learned counsel for the applicant.
7. Heard learned counsel for the parties and perused the record available in the file.
8. Admittedly the applicant is lessee of the Factory in dispute by virtue of lease deed, which is duly signed by Syed S.M Shahabul Islam, Mrs. Iffat Shahab, Attiqur Rehman and Azfar Shahab who are owners of the Factory. The contents of lease deed reveals that owners of the Factory had got Rs.20,00,000/- on the day of execution of lease deed and further amount of Rs.21,00,000/- is payable by the applicant in the year, 2010. The lease deed (annexure “E”) further reveals that the charge of affairs of the Factory was handed over to the applicant and he is authorized to join any person as his business partner or sub-lease the same to anybody else. The annexure “F” dated 30-04-2009, which is also lease deed reveals that the aforesaid Factory has been sub-leased by the applicant, in favour of co-accused Syed Zahir Hussain Shah for two years. The copy of plaint of F.C Suit No.39/2008 has been annexed with the memo of bail application, which reflects that Azfar Shahab brother of the complainant has filed the above suit against present applicant for Declaration, Settlement of Accounts, Recovery of Damages and Permanent Injunction. Three copies of F.I.Rs bearing crime No.133/2008 of PS Hussainabad, Hyderabad, crime No.123/2009 and crime No.141/2009 of PS City, Hyderabad have been placed on record. In the said F.I.Rs brother and father of the complainant have been nominated as accused. From the perusal of above said documents, it appears that the bone of contention between the parties is a Factory and settlement of accounts but they are bent upon to settle down their score by implicating each other in criminal cases by twisting the civil dispute into criminal proceedings. The contents of F.I.R reflects that instead of approaching the concerned Police Station, the complainant has filed a criminal miscellaneous application before the Sessions Judge, Mirpurkhas and obtained the order for registration of F.I.R against the applicant. In the final charge sheet sections 506 (ii), 465, 467 and 468 PPC have been deleted. The lease agreement, by which the applicant had been put in to possession of the disputed Factory, has not been called into question by the complainant party before any forum. So for the section 395 PPC is concerned, it provides alternate punishments viz. punishment for life imprisonment, or rigorous imprisonment for a term which shall not be less than four years nor more than ten years and shall also be liable to fine. The sentence not less than four years was incorporated by Ordinance III of 1980 on 03rd February, 1980 which make the intention of the legislature very clear that when case is registered under section 395 PPC. The Court can not award sentence less than four years and can award sentence not more than ten years. Such factor of lesser punishment was taken into consideration in the case of Shehmoro.Versus.The State, reported in 2007 UC 875 and the applicant was admitted on bail. Following the principle laid down in the case of Shehmoro (supra) and the background of old litigation between the parties as mentioned above, I am of the considered view that the case of the applicant falls under subsection (2) of section 497 Cr.P.C and requires further inquiry.
9. For the foregoing reasons, the applicant was granted bail by short order dated: 04-12-2009.
10. The above observation will not prejudice the case of either side being tentative in nature.
JUDGE
A.C/PA