2012 PLP 617 (MLD)

SYED HASAN AZHAR RIZVI, J.

This bail application has been filed on behalf of applicant Ismail, who has been booked in F.I.R. No.24 of 2011 under section 8(1) Sindh Public Property Removal Act, 2010 of Police Station Anti-Encroachment, Karachi. The brief facts of the case as narrated in the F.I.R. are that complainant Mukhtiarkar Keamari Town has lodged the present F.I.R. against the applicant alleging therein that he is posted as Mukhtiarkar Keamari Town Karachi. On 1-12-2010 Supervising Tapedar namely Akhtar Hussain Zingcho that on wall consisting upon 5 acres has been constructed in Naclass No.92, Deh Mouchko and he has come to know that the same was constructed by one Ismail Baloch and present it is in his possession. The instant F.I.R. has been lodged against the applicant. I have heard Mr. Abdul Karim Junejo, advocate for the applicant, Mr. Muntazir Mehdi learned A.P.-G. and perused the material available on record. Mr. Abdul Karim Junejo learned counsel for the applicant has contended that the applicant is an innocent person and he neither encroached the government land nor the applicant has concern with the land grabbers. He contended that the applicant was arrested on 18-11-2011 by Anti Encroachment Police and accused was produced before the complainant for identification but the complainant has totally refused to identify the applicant. He also contended that as per the CNIC of the applicant his name is Ismail while in challan name of accused has been shown as Ismail Baloch and in the list provided by the Mukhtiarkar is mentioned as Ismail Brohi, as such there is serious doubt in respect of identity of accused, therefore, the case is fit for further enquiry. He further urged that complainant lodged this false F.I.R. on the basis of hearsay evidence as at the time of raid the applicant was not present on the spot and nothing Incriminating has been recovered from the possession of the applicant, which may connect the applicant with the alleged offence. He also urged that there is inordinate delay in lodging of F.I.R. as the incident shown to have been committed on 1-12-2010 and the F.I.R. has been registered on 5-12-2010. He further urged that all the investigation has been completed and the applicant is no more required for further investigation nor there is any apprehension of tampering with P.Ws. and trial will take considerable time as such pending the trial applicant may be enlarge on bail. He further contended that as per the principle laid down by the apex Court in various cases that minimum punishment of an offence can be considered while granting bail to the accused person, as such the minimum punishment prescribed in the offence is one year, therefore, the offence with which the accused is charged does not fall within the prohibitory clause of section 497, Cr.P.C. He, therefore, prayed that the applicant deserves to be admitted on bail. Mr. Muntazir Mehdi, learned Assistant Prosecutor-General, Sindh has opposed the grant of bail to the applicant as according to him the trial Court has rejected the bail plea of the applicant and this is first application moved by the applicant in this Court. He, therefore, submitted that applicant is a land grabber and has link with land mafia group and as such he does not deserve any concession. Admittedly, the offence with which the applicant is charged does not fall within the prohibitory clause of section 497, Cr.P.C. There is unexplained delay of four days in lodging of F.I.R. The story set up cannot be treated free from doubt and the matter requires further inquiry, whereas minimum punishment provided under section 8(1) of Sindh Public Property (Removal of Encroachment) Act), 2010 is for one year. Respectfully following the dicta laid down by the Hon'ble Supreme Court of Pakistan in the case of SHEHZORE and ANOTHER v. THE STATE (2006 YLR 3167), I am of the view that the applicant has made out a case for grant of bail. Accordingly, this bail plea is accepted. The applicant shall be released on bail on his furnishing surety in the sum of Rs.1,00,000 (Rupees One Lac Only) and P.R. bond in the like amount to the satisfaction of the learned trial Court. Foregoing are the reasons for the short order dated 15-12-2011, which was passed after hearing the learned counsel for the parties. M.W.A./I-43/K Bail granted.