ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

                                                Cr. Bail  Appl. No.703  of 2010                                  

DATE         ORDER WITH SIGNATURE OF JUDGE

12.10.2010.

Mr. Muhammad Ali Rind Advocate for the applicant.

Syed Meeral Shah Deputy Prosecutor General Sindh

                                                                                    =                     

Ahmed Ali M. Shaikh J.        Applicant Wali Shah seeks post arrest bail in crime No.81/2010 of Police Station Fort Hyderabad for offence punishable u/s 401, 34  PPC.

2.         The applicant approached the trial Court but his bail application was dismissed vide order dated 18.09.2010. Subsequently, he approached the Sessions Court but he bail plea was turned down vide order dated 24.09.2010.

3.         Per prosecution case on 31.08.2010 on spy information, applicant alongwith co-accused Naveed was arrested by a police party headed by Inspector Zubair ul Islam Siddiqi of P.S. Fort Hyderabad while one of their companion made his escape good. From his body search, police secured Rs.200/-, whereas from co-accused Naveed, a motorcycle, T.T. pistol and Rs.300/- were recovered.

4.         It is inter alia contended by the learned counsel for the applicant that the applicant is innocent and has nothing to do with the alleged offence. Per learned counsel except Rs.200/- no recovery has been affected from the applicant. It is further contended that offence does not fall within the prohibitory clause of section 497 Cr.P.C and in likewise cases, basic rule is bail and its refusal is an exception. Per learned counsel case of the applicant does not fall within exception as laid down by Honourable Supreme Court in Tarique Bashir’s case (PLD 1995 SC 34).

5.         Conversely Syed Meeral Shah Deputy Prosecutor General Sindh opposed the bail application on the ground that he was arrested alongwith co-accused from whom, a pistol and motorcycle were recovered, however, he frankly conceded that except Rs.200/- nothing was recovered from present applicant.

6.         Heard learned counsel for the parties and perused the record.

7.         Admittedly the offence does not fall within the prohibitory clause of section 497 Cr.P.C and in likewise cases, basic rule is bail and not jail. Moreover, there is no iota of evidence available on record to show that the applicant is previous convict or he would tamper with the evidence or abscond away.  Since the case is pending before Judicial Magistrate and in such event sentence of more than three years cannot be visualized as held in case of Manzoor Ali @ Mumtaz Vs. The State 2001 P Cr. L J 344.

8.         For the foregoing reasons, I am of the considered view that the case of the applicant requires further inquiry. Consequently he is admitted to bail subject to furnishing solvent surety in the sum of Rs.50,000/- and P.R bond in the like amount to the satisfaction of the trial court.

The Cr. Bail application stands disposed of.

                                                                                                JUDGE

A.K