ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD

Cr. Bail. Appl. No. S- 766 of 2009

DATE                                     ORDER WITH SIGNATURE OF JUDGE

17.12.2009

Syed Ali Ashraf Shah Advocate for applicant.

Mr. Shahid Ahmed Shaikh Asstt. P.G. for the State.

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Ahmed Ali Shaikh J:             Through the instant application, applicant Khalid Hussain seeks post arrest bail in crime No.15/2007 of Police Station ACE Thatta for offences punishable u/s 409, 34 PPC r/w 5(2) of Act II of 1947.

2.         The bail plea of the applicant has been turned down by the trial court vide order dated 26.11.2009.

3.         According to F.I.R. lodged by SIP Abdul Jabbar Awan Incharge Circle Officer ACE Thatta, there are allegations of misappropriation of an amount of Rs.1,24,200/- in Government funds from 29.02.1997 to 21.08.1997 and Rs.2,91,800/- from 01.09.1998 to 18.12.1998.

4.         It is inter alia contended by the contended counsel for the applicant that the case of the present applicant is identical to the case of co-accused Abdul Hakeem and Mumtaz Ali and they have been admitted on bail by the trial court vide order dated 20.7.2007 and 23.05.2007 respectively, therefore, the applicant is also entitled to concession of bail under rule of consistency. It is further contended that the inquiry in respect of alleged misappropriation was conducted by Additional Secretary Local Government and during inquiry it was found that present applicant and co-accused Abdul Hakeem have committed minor irregularity and it was observed that since no loss has been caused to the Council, therefore, allegations leveled against them were withdrawn and there is no reasonable ground to believe that the applicant is guilty of any offence punishable with death, imprisonment for life or for 10 years but there are many circumstances showing that the case of the applicant requires further inquiry. In support of his contentions, learned counsel has relied upon the case of Muhammad Daud and another Vs. The State & another (2008 SCMR 173).

5.         Learned Assistant Prosecutor General Sindh did not oppose the bail application so far the merits of the case are concerned as co-accused have already been admitted on bail but he pointed out that the applicant was absconder and in pursuance of NBWs issued by the trial court, he was arrested later on, therefore, his case is on different footings.

6.         Admittedly under similar allegations, co-accused Abdul Hakeem and Mumtaz Ali have been admitted on bail by the trial court and the case of present applicant is at par to the case of co-accused. So far abscondence of applicant/accused is concerned, no proceedings u/s 87 and 88 Cr.P.C have been initiated against him, therefore, he cannot be treated as absconder. In view of the law laid down by Honourable Supreme Court in case of Khan Mir Vs. Amal Sherin @ Kamal  and two others (1989 SCMR 1987). The findings of inquiry conducted by Additional Secretary Local Government have been placed on record, which reveal that present applicant and co-accused Abdul Hakeem were not found responsible for misappropriation and at the most they have committed some minor irregularity, therefore, they were exonerated from the charge of misappropriation.

7.         In view of the above and keeping in view the fact that co-accused under similar allegations have been admitted on bail by the trial court, the applicant also deserves the concession of bail under the doctrine of consistency. I, therefore, allow this application and admit the applicant on bail subject to furnishing his solvent surety in the sum of Rs.100,000/- and P.R bond in the like amount to the satisfaction of the trial court.

This criminal Bail Application stands disposed of.

JUDGE

AKC