2017 P Cr (PLP)

ANWAR HUSSAIN, J.

Through this Application, the Applicant seeks Post-arrest bail, as his Bail Application has been rejected by the learned Special Judge, Anti-Corruption (Provincial), Larkana, vide Order dated 15.2.2016, in Crime No.60/2015, under sections 380, 409, 34, P.P.C., read with section 5(2), of the Prevention of Corruption Act-II of 1947, of P.S. Saddar, Jacobabad. The actual facts, out of which the instant FIR has been lodged are that on 22.6.2015, the Larkana Police on the spy information arrested one Naresh Kumar, who was found in possession of some cartons containing Tablet Medigsic Forte, bearing Batch No.262 and Registration No.014213, whereon there was the Mark as "Sindh Government Property/Sale Prohibited", and said person disclosed to the Police that he is owner of Darwesh Medical Store; he has purchased these Tablets from Aakash, so he was apprehended; said Tablets were recovered/secured and FIR, lodged against said Naresh Kumar, bearing Crime No.60/2015, under section 411, P.P.C., at P.S. Civil Line, Larkana. Consequently, vide Letter No.DHO/JCD/5022-27, dated 21.6.2015, of District Health Officer, Jacobabad, the instant FIR, bearing No.60/2015, under section 380, P.P.C., P.S. Saddar, Jacobabad, was lodged against Imdad Hussain Kanasiro, (Applicant), on the contents that he being Store Keeper in the Office of D.H.O, Jacobabad, is responsible person of all receipts, issuance and balances of all supplies of Medical Store of the District Health Officer, Jacobabad; and Stock Register and Keys remain in his possession. Thereafter, the Applicant obtained Pre-Arrest Bail from learned Sessions Judge, Jacobabad and Charge Sheet submitted in the Court of Judicial Magistrate-I, Jacobabad, incorporating the Offence under sections 409/34, P.P.C., but the learned Magistrate, directed that the Challan be submitted to the Special Judge, Anti-corruption, Larkana, where the Challan was submitted, showing present Applicant and said Naresh Kumar, as absconders; the Trial Court issued NBWs., against them; so the Applicant obtained Protective Bail from this Court and surrendered before the Trial Court; obtained interim Pre -Arrest Bail, which was not confirmed and Applicant was taken into custody. Ultimately, the Applicant filed Application for Post-arrest Bail before Trial Court, which was rejected. Hence this Bail Application in this Court. Learned Counsel for the Applicant submitted that vide Letter No.3305/11, dated 8th May, 2015, the Applicant, Store Keeper, was directed to work at District Drug Store, DHO Office, Jacobabad, but his predecessor namely, Abdul Khaliq, did not hand over the charge to the Applicant and as such the District Health Officer, Jacobabad and District Coordinator, Jacobabad, by breaking open the lock of the Store, handed over the Charge to the Applicant, but without preparation of the Inventory of the goods/medicines stored therein and statement under section 161, Cr.P.C., of Applicant's Predecessor is also silent in this regard. Per learned Counsel there is no Inventory on record in the matter; that in absence of such inventory the offences under sections 380, 409/34, P.P.C., read with section 5(2), of the Prevention of Corruption Act-II of 1947, against the Applicant require further inquiry and the Applicant is entitled for concession of bail; that the person from whom the co-accused Naresh Kumar, has allegedly purchased said Tablets, has not been examined; that from contents of the FIR, no allegation has been leveled against the Applicant. Learned Counsel further submitted that while deciding the Bail Application the lesser punishment of the offence is to be taken into consideration and alternate punishment for offence under section 409, P.P.C., is imprisonment which may extend to ten years. Learned Counsel relied upon PLD 1995 SC 34, 1996 SCMR 1132, 2004 SCMR 235, 2012 SCMR 573 and 2006 YLR 3167 (Karachi). Whereas, learned D.D.P.P., submitted that the Applicant has committed misappropriation of the government property and there is recovery of the government medicines, so the Applicant is not entitled for bail. During arguments the Learned Counsel for the Applicant placed on record Transfer/Posting Letter of the Applicant, Statement Showing handing over charge, Copy of FIR No.60/2015, of P.S. Civil Line, Larkana, and Copy of Statement under section 161, Cr.P.C., of Abdul Khaliq, the predecessor of Applicant and P.W. in the case and copies of the same were supplied to the learned D.D.P.P., and at his instance Complainant and Investigation Officer of the case were called along with Police File, as such they appeared and it was submitted through learned D.D.P.P., that no Inventory of the goods/medicines is available on record. After going through the submissions and record available, I have observed that since said Naresh Kumar, who was arrested at Larkana and from whose possession stolen Tablets were recovered, disclosed to the Police that he had purchased the same from one Aakash, but even then the said Aakash has not been examined; and FIR No.60/2015, under section 411, P.P.C., lodged at P.S. Civil Line, Larkana, against said Naresh Kumar only. Thereafter, instant FIR under section 380, P.P.C., lodged against Applicant at P.S. Saddar, Jacobabad; and challan submitted under sections 409/34, P.P.C., read with section 5(2) of the Prevention of Corruption Act-II of 1947, but it has not been shown that the said stolen property was stored in the Store of D.H.O., Office, Jacobabad, under the control of the Applicant and the prosecution has not even produced any Inventory of stored medicines, when the charge was given to Applicant and even in this Court the same was not shown. In view of the fact, that when no Inventory of stored medicines has been produced, the application of section 409 would require further probe into guilt of the Applicant and even otherwise as per FIR neither there is any direct allegation against the Applicant in respect of the commission of alleged offence nor there is any allegation of bribery or corruption against the Applicant. Furthermore, the case of prosecution depends upon documentary evidence, which is in possession of the prosecution, therefore question of its tampering does not arise and Applicant has been challaned and no more required by Police for the purpose of investigation. In view of the above circumstances, the Applicant has been able to make out a case for grant of bail and in such circumstances the Applicant is not be deprived of benefit of bail, in view of the case of Tariq Bashir v. The State (PLD 1995 SC 34), case of Amanullah Shah v. The State (PLD 1996 SC 241) and case of Nisar Ahmed v. The State (2014 SCMR 27). Accordingly, the instant Bail Application stands allowed and the Applicant is directed to be released on bail on furnishing solvent surety in the sum of Rs.100,000/- (One Hundred Thousand Rupees) and P.R. bond in the like amount to the satisfaction of the learned Trial Court. The observations made hereinabove are tentative in nature and would not influence case of either party at trial. SL/I-18/Sindh Bail allowed.