2016 P Cr (PLP)

SHAHNAWAZ TARIQ, J.

Through the captioned post arrest bail application, applicant Mumtaz Ali has impugned order dated 07.02.2015, passed by the Court of learned Additional Sessions Judge, Tando Muhammad Khan, whereby his earlier bail application was declined.

2. The relevant facts pertaining to the prosecution story are that complainant lodged FIR against unknown persons for commission of dacoity in his house, hence the instant FIR.

3. Learned counsel for applicant contended that applicant is innocent and has been falsely implicated in this case by complainant due to his enmity with police. He further contended that applicant was illegally arrested by Tarique Latif Khanzada, SHO Shahpur, District Matiari, for illegal gratification, and his mother namely Mst. Fatima had filed Criminal Miscellaneous Application No.D-769 of 2014, under section 491, Cr.P.C. before this Court. He pointed out pages 53 to 61 of this file, which are orders passed by the learned Division Bench of this Court, whereby raid was conducted for recovery of applicant. He further submitted that despite repeated directives of the learned Division Bench of this Court said SHO did not appear before this Court on one pretext or another, and ultimately after causing severe maltreatment, applicant was released and he appeared before the learned Division Bench on 04.12.2014 and was referred to Medical Superintendent/Civil Surgeon Services Hospital, Hyderabad for constitution of Medical Board and medical treatment. He further contended that to settle his grievances, SHO Tarique Latif Khanzada has falsely implicated the applicant through the I.O. of instant crime. He further contended that neither the name of the applicant is mentioned in FIR nor any role has been assigned to him, and mere on the statement of co-accused, the alleged recovery of one golden ring and one golden chain has been foisted upon him alleging that he being a gold smith, had purchased the said snatched articles from accused Naveed. He further contended that descriptions of recovered chain and ring are not mentioned in the FIR nor identification of articles was held before the concerned Magistrate. He further contended that applicant was arrested on 15.01.2015 and during the period of four months prosecution has not examined a single witness. He further contended that at most the offence punishable under section 412, P.P.C. is made out, which is punishable upto 10 years. He also emphasized that co-accused Naveed was arrested by CIA Tando Muhammad Khan and on his statement applicant was arrested malafidely.

4. While controverting the plea raised by learned counsel for applicant, learned counsel for complainant contended that applicant had purchased the snatched articles, which were identified by the complainant, as such he is not entitled for grant of bail.

5. Learned A.P.G. adopted the arguments advanced by learned counsel for complainant and contended that applicant is not entitled for grant of bail and non-mentioning of section 412, P.P.C. against the accused would not defeat the case of prosecution and it is for the trial Court to frame the charge in the purview of material placed by the prosecution before it.

6. Perusal of the material available on record and consideration of arguments advanced by learned counsel for the parties emanate that allegedly applicant was arrested for the offence of purchasing the two snatched articles from accused Naveed. Indeed, the name of applicant is not mentioned in FIR nor any role has been assigned to him. Applicant was apprehended on the statement of co-accused Naveed that he had sold said articles to applicant, and police allegedly recovered one ring and one chain from his shop. However, in FIR no description of said chain and ring have been mentioned. The alleged offence for purchasing the snatched articles falls within the ambit of section 412, P.P.C., which is punishable upto 10 years and it for learned trial to thresh hold the truth and decide the quantum of sentence if charge is proved against applicant. It is well settled that while deciding the question of bail, the Court has to consider the minimum aspect of sentence provided for the alleged offence in the schedule. In case of Jamal-ud-Din v. State, 2012 SCMR 573, the Hon'ble Supreme Court has observed as follows:- "

4. Without entering into the merits of the case, as the quantum of sentence has to be commensurate with the quantum of substance recovered, we doubt the petitioner can be awarded maximum sentence provided by the Statute. Needless to say that the Court while hearing, a petition for bail is not to keep in view the maximum sentence provided by the Statute but the one which is likely to be entailed in the facts and circumstances of the case. The fact that petitioner has been in jail for three months yet commencement of his trial let alone its conclusion is not in sight, would also tilt the scales of justice in favour of bail rather than jail."

7. The factum of animosity of applicant with SHO Tariq Latif Khanzada, of Police Station Shahpur, has been established through the certain documents and orders passed by learned Division Bench of this Court in criminal miscellaneous application No.D-769 of 2014, under section 491, Cr.P.C. which are available in the file.

8. Admittedly, applicant is behind the bars for the period more than four months, but prosecution has failed to examine a single witness during the course of trial. Moreover, further detention of applicant will not serve any useful purpose, as investigation has already been completed and his enlargement on bail will also not affect the case of the prosecution, as there is no probability of tampering with the prosecution evidence. Moreover, as per CRO report, applicant never remained involved in any other criminal case. In the case of Tariq Bashir and 5 others v. The State (PLD 1995 SC 34), the Honourable Supreme Court has observed as follows:- The bail will be declined only in extra ordinary and exceptional cases, for example- (a) Where there is likelihood of abscondence of the accused; (b) Where there is apprehension of the accused tampering with the prosecution evidence; (c) Where there is danger of the offence being repeated if the accused is released on bail; and (d) Where the accused is a previous convict.

9. The considerations for the grant of bail and for cancellation of the same are altogether different. Once the bail is granted by a Court of competent jurisdiction, then strong and exceptional grounds would be required for cancellation thereof. To deprive a person on post arrest bail of the liberty is a most serious step to be taken. There is no legal compulsion to cancel the bail of the accused who allegedly had committed crime punishable with death imprisonment for life or imprisonment for 10 years. Question of benefit of reasonable doubt is necessary to be determined not only while deciding the question of guilt of an accused but also while considering the question of bail because there is wide difference between the jail life and free life. So benefit of reasonable doubt about occurrence itself, identity of the accused, part allegedly played by him in the occurrence, his presence on the spot and on the question of his vicarious liability, would go to him even at bail stage. It is by now judiciously recognized that there is a tendency in our society to involve innocent persons with the guilty. Once an innocent person is falsely involved in a serious case, then he has remained in jail for considerable time. Normally it takes two years to conclude the trial. When a person is detained in a jail, all his dependents also suffer hardships. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistake relief of interim bail granted to him but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case, albeit his acquittal in the long run. So, whenever reasonable doubt arises with regard to the participation of an accused person in the crime, he should not be deprived of the benefit of bail. The bail can neither be withheld nor cancelled as punishment".

9. Considering the above facts and circumstances, the applicant has succeeded to make out his case for grant of post arrest bail on the ground of further inquiry as envisaged under section 497(2), Cr.P.C. Consequently, applicant is admitted to post-arrest bail on furnishing solvent surety in the sum of Rs.100,000/- (rupees one lac) and P.R. Bond in like amount to the satisfaction of the learned trial Court.

10. The observations made hereinabove are tentative in nature and shall not prejudice the case of either party at the time of trial. SL/M-62/Sindh Application accepted.