2002 PLP 616 (YLR)

Sher Muhammad Shar, Asstt. A.-G. for the State. Nadeem Ahmed Tunio for the Complainant. By this application, learned counsel for the applicant has sought bail in anticipation of his arrest who is involve case bearing Crime No. 132 of 2001 of Poh4 Station City, Jacobabad, for an offence undo sections 468, 454, 448, 506/2 and 34, P.P.C The bail plea filed on behalf of the applicant was declined by the learned Sessions Judge Jacobabad vide order dated 24-11-2001. The facts germane to the prosecution story are that on 12-10-2001 at 7-00 p.m complainant Ashok Kumar appeared at City Police Station District Jacobabad and lodged an F.I.R. alleging inter alia that he is owner of the house bearing City Survey Nos.57/2 and 58/2 situated in Dangar Mohall Jacobabad which is the joint property of the complainant. his mother and brothers. It is said that the complainant used to look after the said property. The above property was rented out to one Mukhtiar Ahmed Mangrio The said Mukhtiar Ahmed Mangrio without permission of the complainant rented out the above property to accused Muhammad Zakria. Thereafter, complainant filed a rent application in the Court of 1st Senior Civil Judge and Rent Controller, Jacobabad against Mukhtiar Ahmed and accused Muhammad Zakria. The above rent application was decided in favour of the complainant Thereafter, the complainant initiate execution proceedings against the accused The said application was granted and the above property was handed over to the complainant vide execution proceedings date: 24-8-2001. After receipt of the possession the complainant alongwith his brothers took possession of the disputed property and on 25-8-2001 the complainant appeared in the Court of 1st Senior Civil Judge and Rent Controller Jacobabad where he gave writing that he has received the possession the disputed property. On 25-8-2001 the complainant alongwith his brother namely Panjoram and Roshanlal came at the house where they found that the locks of the house were broken and doors were lying open. Accused Muhammad Zakria,

2. Hussain Bux,

3. Juma Khan and

4. Deedar Hussain had taken the possession of the house by force and all the house hold articles lying there were found stolen. On being persuaded as to why they have taken the forcible possession of the property of the complainant party, the said accused threatened the complainant party of the dire consequences and in case they will not stop their activities, they will be killed. The complainant approached the concerned police station for lodging F.I.R., but the S.H.O. refused to enter the same in a book under section 154, Cr.P.C. on the ground that the stay has been granted by the High Court Bench at Larkana and as such the request of the complainant is under consideration. The S.H.O. kept the complainant party on procrastination and ultimately refused to register F.I.R. the complainant for the purpose of verification came to the office of the High Court Circuit Court Larkana for verification of the stay order. where he came to know that no such order has been issued by the Court and on the contrary some false document has been prepared in this regard. The complainant filed a Writ Petition being No.426/2001 in the High Court and was directed by High Court to appear before the S.S.P. Jacobabad who issued directions for registration of F.I.R. against accused Muhammad Zakria,

2. Hussain Bux,

3. Juma Khan and

4. Deedar Hussain as they have taken the law in their hands. In the circumstances F.I.R. was registered as above. The investigation followed and in due course co-accused Muhammad Zakriya and Juma Khan were arrested whereas applicant Deedar Hussain was shown absconding who latter on approached this Court for bail in anticipation of his arrest. The applicant was granted interim pre-arrest bail on 26-12-2001 and today the matter is fixed for confirmation or otherwise. I have heard the learned counsel for the respective parties and perused the record. It has been contended by the learned counsel that the case against the applicant is false and he has been involved in the case in the background of enmity and suspicion. It has also been contended that the involvement of the applicant in this case is due to mala fide and ulterior reasons, on the part of police inasmuch as the complainant party ", motivated against the applicant at the instance of S.H.O. so as to involve him in this case It has been argued that F.I.R. is belated by 1- months. The offence is punishable up seven years and the same goes out of the prohibition as contained in section 497(i) Cr.P.C. It has been further argued that the is a civil dispute between the applicants and the complainant party and the Suit No.53 2001 is pending adjudication in the Court learned Senior Civil Judge and Rent Controller, Jacobabad. Learned counsel in support of the arguments has referred to the case of Nisar Ahmed alias Nisar v. The State (1999 PCr.LJ 1066), Karam Illahi v. The State (1995 PCr.LJ 1661), Orangzeb v. The State (2001 PCr.LJ 696) and Said Mahmood Mohyadin v. Haji Muhammad and other (2001 PCr.LJ 1734). In all these citations bail was granted on the ground that the offence at the most is punishable up to seven years and the same is not covered by the prohibition as contained in section 497(i) Cr.P.C. On the other hand Mr. Nadeem Ahmed Tunio for the complainant an, Mr. Sher Muhammad Shar, Assistant Advocate General for the State have opposed the grant of bail on the ground that the applicants are responsible for committing fraud, cheating and theft for which the F.I.R has been registered on the directions of High Court. The accused have taken the law in hand and violated the sanctity of the High Court and its Judge. In fact the applicants/accused have acted in such a. manner and form that they should be dealt with an iron hand and punished ruthlessly as they deserve no clemency or concession. Besides perusal of F.I.R. shows that the applicants have trespassed into the house of complainant party by show of force and committed burglary for which section 454, P.P.C. has been applied which is punishable upto ten years and the same is covered by prohibitory clause of section 497(i), Cr.P.C. He has relied upon case of Muhammad Aslam v. The State reported as 1999 MLD 1833 and Abdul Qayum v. The State (1999 MLD 2026) in support of his contentions. Learned Assistant Advocate General adopts the arguments of learned counsel for the complainant and opposed the grant of bail. I have given my anxious consideration to the arguments of respective parties and perused the record. The F.I.R. reveals that the trial Court while passing an order refusing bail has taken into consideration every aspect of the matter in issue. The part assigned to the present applicants has been highlighted in the order passed by the learned trial Court whereby the applicants were found connected with the commission of crime, From the facts narrated in the F.I.R. and other material it can be easily inferred and spelt out that the applicants are responsible for the commission of an offence which is punishable up to ten years. As per F.I.R. the applicants have trespassed into the house of complainant party by show of force and committed burglary for which section 454, P.P.C. has been applied which is punishable up to ten years and the same is covered by prohibitory clause of section 497(i), Cr.P.C. section 454, P.P.C. is reproduced as under:

454. Lurking house-trespass or house breaking in order to commit offence punishable with imprisonment. Whoever commit lurking house-trespass or house breaking, in order to committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine and if the offence intended to be committed is theft the term of the imprisonment may be extended to ten years. In the circumstances the applicant has not been able to make out a case for confirmation of bail, interim bail being granted on 16-12-2001 is hereby recalled The applicant is present in Court. He is takes into custody and remanded to jail. H.B.T./D-33/K Interim Bail recalled