ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Crl. Bail Appln.    No.S-79  of  2014.

DATE OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE

FOR HEARING.

07.4.2014.

Mr. Niaz Hussain Mirani, advocate for applicant.

                        Mr. Imtiaz Ali Jalbani, A.P.G.

                                                -.-.-.-.-.-.-.-.-

                        Applicant / accused seeks post arrest bail in Crime No.02 of 2014 registered at Police Station New Faujdari, district Shikarpur for offences punishable under section 409, 201, 34, PPC R/w section 5(2), Anticorruption Act-II of 1947.

                        After usual investigation challan was submitted against the applicant/accused P.C Abdul Rahim and ASI Gulzar Ahmed for offences under sections 409, 201, 34, PPC R/w section 5(2), Anticorruption Act-II of 1947.

                        Bail application was moved before the trial Court, the same was rejected by the learned Special Judge, Anticorruption (Provincial), Larkana vide order dated 3^rd February, 2014. Thereafter, applicant/accused has approached to this Court.

                        Brief facts of the prosecution case are that the complainant HC Zulifqar Ali @ Imran Ali AWHC, police line Shikarpur lodged FIR on behalf of the State alleging therein that on 01.4.2009, ASI Gulzar Ahmed Soomro had issued a G-3 rifle, 2 magazines and 40 bullets to the applicant PC Abdul Rahim Abro, which he did not deposit since last four years and misappropriated the same. ASI Gulzar Ahmed Soomro  reported such matter against PC Abdul Rahim. Such inquiry into the matter was conducted by DSP Headquarter who submitted such report to SSP Shikarpurt, whereby SSP ordered for registration of case against PC Abdul Rahim Abro and ASI Gulzar Ahmed Soomro.

                        Learned advocate for the applicant/accused mainly contended that FIR has been lodged with the delay of about four years; the alleged offence does not fall within the prohibitory clause of section 497(1), Cr.P.C; the local police had no lawful authority to investigate the scheduled offence. It is also argued that the applicant / accused is serving in police department since last twenty four years without any complaint. Lastly it is argued that the case of the applicant / accused requires further enquiry. In support of his contentions learned counsel has placed his reliance upon the cases reported as Ijaz Akhtar versus The State 1978 SCMR 64, Ch. Bashir versus The State PLD 1969 Peshawar 49, Ghulam Nabi versus The State 2003 P.Cr.L.J 447 and Nazeer & others versus The Starte SBLR  2006 Sindh 1516.

                        Learned A.P.G has opposed the grant of bail to the applicant/accused by arguing that applicant who is public servant has misappropriated the rifle, officially assigned to him for the discharge of his duty. He has argued that investigation of scheduled offence by local police is an irregularity but the same is curable. He has opposed the bail application.

                        I am inclined to grant bail to the applicant/accused for the reasons that FIR has been lodged with the delay of about four years for which no plausible explanation has been furnished. No order/letter has been placed on record to show that G-3 rifle was officially assigned to the applicant/accused for discharge of official duty. Yet it is to be determined at trial whether G.-3 rifle was actually entrusted to the applicant/accused in the capacity of public servant and he has committed criminal breach of trust in respect of that property. It has been argued hat the applicant/accused is serving in police Department since last twenty four years without any complaint of such nature. All the P.Ws are police officials and there is no question of tampering with the evidence. Serious malafide on the part of local police has been alleged and it is argued that though the offence is scheduled one, in spite of that local police investigated the case. Prima facie a case against the applicant/accused requires further enquiry as contemplated under sub section (2) of Section 497, Cr.P.C. Rightly reliance has been placed upon the above cited cases. Therefore, concession of bail is extended to the applicant/accused subject to his furnishing solvent surety in the sum of Rs.50,000/- (Rupees. Fifty thousand only) and P.R bond in the like amount to the satisfaction of learned trial Court.

                        Needless to mention that above observations made hereinabove are tentative in nature, the trial Court shall not be influenced by such observations while deciding the case on merits.

Judge

M.Y.Panhwar/**