SHABIR Versus State
ORDER
MUHAMMAD SALEEM JESSAR, J .---Through this application, Applicant Shaber seeks his admission on post-arrest bail in Crime No.87 of 2019, registered at Police Station Mithi, District Tharparkar, under sections 269 and 337-J, P.P.C. Earlier the bail plea raised by Applicant before first forum was declined by means of order dated 31.10.2019, hence this application.
2. The crux of the case as unfolded by complainant in his FIR are to the effect that on 20.10.2019, he along with his sub-ordinates left police station in police mobile bearing No.SPF-280, under their daily diary entry No.10 for snap checking as well patrolling. When they started snap checking at 2240 hours over the road leading towards village Ahoo then at about 2300 hours a jeep was coming from katcha path which was signaled to stop by showing torch light; however, driver of jeep after parking and alighting from it fled away towards Jungle by taking advantage of darkness, who was identified by police on light of torches to be Sultan son of Giyanchand. However, the jeep was secured by police and on search they recovered 05 white colour sacks which were unfolded and found containing 15000 mainpuris as well 10500 Safina Gutka while the person sitting inside said jeep was apprehended. On inquiry, he disclosed his name to be present Applicant, thereafter memo of such recovery and arrest has been prepared in presence of police mashirs, whereafter, the recovered property and the accused were brought at police station where FIR was registered. After due investigation case has been challaned which is now pending adjudication before Additional Sessions Judge, Tharparkar.
3. Learned counsel for Applicant submits that alleged absconder namely Sultan is brother of Applicant Shaber who runs SSD Autos at Mithi. The complainant of this case namely ASI Dost Ali had borrowed some articles worth of Rs. 1,30,000/- for his vehicle and in return he kept original file of his vehicle with brother of applicant Sultan as guarantee. Due to lapse of time, the brother of Applicant made demand from him to pay such amount, upon which he became annoyed; however, in order to deceit the complainant got returned the file from Sultan on the pretext that he would repay dues within no time. He next submits that instead ASI Dost Ali implicated Applicant and his brother in this case by foisting upon them alleged mainpuri/gutka only to exert illegal pressure upon the Applicant and his brother so that they may surrender their due amount. He next submits that picture of the complainant was got recorded in the CCTV camera installed in the shop; and, he annexed such photographs with instant bail application as annexure-G and G-I. He next submits that instant case is nothing but out of personal grudge with police officer, who by misusing his official position, worthy and law in order to usurp the amount borrowed by him from co-accused has cooked up instant case which has no independent leg to stand upon. He next argues that applicant was arrested by complainant from village Joglar where he along with many others was present in a feast and such CDR can be obtained. As far as present incident is concerned he submits that all this has been cooked up and the villagers in whose presence he was arrested, had filed their affidavits before trial Court well I.O. who have not considered the same. He further submits that as far as section 337-J, P.P.C. is concerned, it is yet to be determined by the trial Court and at this juncture case against applicant requires further inquiry and prays for grant of pre-arrest bail to Applicant. In support of his contention, he has placed reliance upon the cases of Hafiz Muhammad Shehzad v. The State (2019 MLD 1588), Ali Akbar v. The State (1991 MLD 2208) and Zaigham Ashraf v. The State and others (sic).
4. On other hand, learned D.P.G opposes bail application and submits that offence with which Applicant has been charged carries maximum punishment of 10 years, therefore, exceeds limits of prohibition clause of section 497, Cr.P.C. as huge quantity of mainpuri and gutka is shown to have been recovered. As far as highhandedness of police is concerned, learned D.P.G submits that applicant can agitate such plea before trial Court or high-ups of police.
5. Heard arguments and perused the record.
6. As far as plea of alibi taken by Applicant is concerned the affidavits sworn in by the inhabitants of the area in whose presence Applicant is alleged to have been arrested is to be agitated upon before trial Court at the time of trial. No doubt, huge quantity of mainpuri and gutka is shown to have been recovered from possession of Applicant but very purpose of the same is yet to be established by prosecution more particularly when no victim or customer has been cited by the police, therefore, section 337-J, P.P.C. is yet to be determined/established; particularly when not a single person claimed to be purchaser or victim has been examined. The enmity shown against police officer shows malice on part of prosecution, which is sufficient to hold the case of Applicant as one of further inquiry as envisaged under section 497(2), Cr.P.C.
7. In view of above discussion, I am of considered view that applicant has successfully made out a good prima facie case for his admission on post- arrest bail. Consequently, instant bail application is hereby allowed. The Applicant is admitted to post arrest bail in aforementioned crime subject to furnishing his solvent surety in the sum of Rs.50,000/- (Rupees fifty thousand only) and P.R Bond in the like amount to the satisfaction of the trial Court.
8. Needless to mention that observations made herein above are tentative in nature and would not influence the trial Court while deciding the case on merits.
9. As reported, the case has already been challaned by police, which is now pending for trial. Hence the trial Court is directed to expedite the trial and conclude the same as early as possible under intimation to this Court through Additional Registrar. Copy of order be communicated to the trial Court through learned Sessions Judge concerned over fax today for compliance.
ADN/S-25/Sindh Bail allowed.