2015 PLP 855 (YLR)

AMER RAZA NAQVI, J.

Through this bail application, applicant has sought bail in FIR No.6 of 2014, dated 7-4-2014 under sections 8, 9(c), 14, 15 CNS Act, 1997, Police Station ANF Clifton, Karachi.

2. As is evident from the order dated 2-7-2014 learned counsel had relied on PLD 2003 Karachi 393 on the question of maintainability as previous bail application of the applicant was dismissed on 23-5-2014 vide Order passed in Criminal Bail Application No.794 of 2014. Learned counsel has submitted that prosecution after thorough investigation did not intend to proceed against the applicant in the trial and instead had requested the trial Court to release the accused under section 169, Cr.P.C. Learned counsel further says that vide Order dated 7-5-2014 the said interim report filed by prosecution was disapproved by the trial Court. Through this report it was prayed that present applicant be released as no incriminating evidence is available against him. Learned counsel has referred various other documents including Annexure "D-2" available at Page 213, whereby, the learned trial Court recorded the statement of Muhammad Afzal, complainant and investigation officer in the case. Learned counsel pointed out that such recording of statement is not supported by any law. It appears that had order dated 7-5-2014 was not passed in the manner as it was passed the report of investigation officer would have been accepted, and applicant could have been released on the same day. Learned counsel further points out that he has challenged such order by way of Criminal Miscellaneous Application No.162/2014 and in such proceedings after considering the arguments of learned counsel the order dated 7-5-2014 was suspended to the extent of present application. Learned counsel says that such suspension perhaps could not be implemented due to the suspension of proceedings ordered by this Court in Transfer Application No.48/2014 otherwise he would have applied to the trial Court for release of the present applicant instead of insisting on present proceedings. For consideration, of this bail application learned counsel has relied on PLD 2003 Kar. 393 and also on 2004 PCr.LJ 935 SC (Azad Jamu and Kashmir), wherein, it was held that if in an earlier order dismissing the bail application some ground is not considered by the Court the same can be agitated in the subsequent bail application. The learned counsel for the applicant says that every day, which is passing the applicant is behind the bars without lawful justification and merely on hypo technical grounds as the proceedings before the trial Court has been suspended though on the application of the applicant himself. Learned counsel has also relied on 2011 SCMR 863 and stated that while hearing bail application High Court can grant relief even beyond the prayer made in the bail application.

3. Mr. Omer Sial, learned Special Prosecutor ANF states that report under section 169 Cr.P.C. in respect of the present applicant was moved after thorough investigation and after being satisfied that there is no incriminating evidence available against the present applicant. The learned counsel also says that even in the statement of I.O. recorded by trial Court available at Page 213, the I.O. has taken the same stand. He further says that view taken in the report under section 169, Cr.P.C. is well considered view of ANF.

4. The factual and legal aspects explained by the learned counsel for the applicant is not disputed by the learned counsel appearing for ANF. In my view order dated 2-7-2014 passed in Criminal Miscellaneous Application No.162/2014 gives a fresh ground to the applicant. It is also evident from the record that according to prosecution no incriminating evidence is available against the applicant, which could justify his facing of trial. However, the order dated 2-7-2014 is an interim order and is subject to final order passed in those proceedings. Such a situation, however, cannot justify keeping the applicant in custody for an indefinite period when according to both the parties no evidence of whatsoever nature is available against the present applicant and only his licence was used which according to prosecution itself is a normal practice in the market and such fact cannot constitute a criminal offence under CNS Act, 1997 by itself and for making out a case incriminating evidence is necessary particularly when a person is brought in the Court to face the trial.

5. In view of the above facts and circumstances, I am inclined to grant interim post arrest bail to the applicant, which is accordingly granted subject to furnishing solvent surety in the sum of Rs.10 Millions with PR bond in the like amount to the satisfaction of Nazir of this Court. Applicant shall also surrender his valid passport before the Nazir of this Court. The bail application, however, shall remain pending for confirmation or otherwise. Since through this order only interim bail is being granted mainly in view of order dated 2-7-2014, this matter may not be treated as part heard and on subsequent dates can be fixed before any other bench according to roster. Since the proceedings before the trial Court has already been suspended, office of this Court after acceptance of surety may issue the release order directly. To come up on 12-8-2014 for confirmation or otherwise as suggested by both the learned counsel. MH/S-67/Sindh Order accordingly.