JABAR SHAH and another vs THE STATE

ORDER

1. ' By this order I intend to dispose of Criminal Bail Application No,481 of 2001 filed on behalf of applicants Jabar Shah and Nawab Shah in a case bearing F:I.R. No,22 of 2001 of Police Station Pano Aqil Cantt. For offences under sections 457, 458, 380, 382 and 511, P. P.0 .

2. ' The bail plea of the applicants was declined by the two Courts below namely Civil Judge and F.C.M. Pano Aqil and the learned Sessions Judge, Sukkur vide their separate orders, dated 16-6-2001 and 24-7-2001, respectively.

3. ' The facts germane to the prosecution story are that on 9-5-2001 at 1-30 a.m. Complainant Chuttal Shah appeared at Police Station Cantt. Pano Aqil, District Sukkur and lodged F.I.R. Alleging, inter alia, that he alongwith his uncles namely Imam Ali Shah and Punhal Shah used to live in his house. They possessed some heads of cattle which they used to tether in their house in an open courtyard. On the eventful night as the complainant alongwith other family members, after having dinner, went into bed and at that moment the electric bulbs were glowing. At 1245 a.m. They woke up on the barking of dogs and saw three persons on the electric light while untethering some heads of cattle.

4. Complainant raised commotion on which his uncles namely Imam Ali Shah, Punhal Shah and other inmates of the house woke up. At this, the culprits managed to escape but they were identified as

(i) Jabbar Shah (ii) Nawab Shah, both duly armed with guns and (iii) an unidentified person being armed with Lathi. The complainant party claimed to identify the culprits in the light of bulbs. On verification, the complainant party found its cattle intact in the cattle pen. The complainant ultimately approached the police station where F.I.R. Was registered, as above..

5. ' After usual investigation, the applicants were sent up to stand trial in the Court of law.

6. ' Heard Mr. Manzoor Ahmed Junejo, learned counsel for the applicants, and Mr. Abdul Sattar Sono, learned counsel for the State. It has been contended by the learned counsel for the applicants that the offence though punishable up to 14 years but since the case is pending in the Court of Civil Judge and F.C.M. Pano Aqil, who is not competent to award sentence for more than three years. It has also been contended by the learned counsel that the offence has not been completed as nothing from the cattle was stolen and in that eventuality the sentence awarded could be to the extent of half of the major punishment as. Provided under the law. According to him, since sections 457 and 448 are punishable up to 14 years, the penalty provided comes to the extent of seven years. It has further been contended that the night of the incident was dark and the question of visibility on the light of electric bulbs can be seriously looked into. Lastly, it has been argued by the learned counsel for the applicants that the complainant party and the accused both are Syed by cast and closely related to each other but due to some matrimonial dispute they have cooked up this false story as disclosed in the F,. I.R. In this background, learned counsel for the applicants argues that it is a fit case where the bail could be granted to the applicants. Learned counsel has relied upon the cases of Sadderuddin v. The State 1994 PCr.LJ 1215, Arshad Ali v. The State 2000 M LD 1088 and Manzoor Ali alias Mumtaz v. The State 2001 PCr.LJ 344 in support of his contentions.

7. ' Learned counsel appearing on behalf of the State concedes to the above legal position and raised no objection for the grant of bail.

8. I have given my anxious consideration to the arguments of the respective parties and perused the record. Admittedly, the case is pending trial in the Court of Civil Judge and F.C.M. Pano Aqil who is not competent to award a sentence of more than three years. Besides this, the major penalty provided under the above sections goes up to 14 years but in view of the fact that since the offence has not been completed. The quantum of sentence in that eventuality would be half of the sentence i,e, seven years. On both these counts, the offence goes out of the prohibition as contained in section 497(1), Cr.P.C. In view of the above facts and circumstances and more particularly in the light of the decision reported in Tariq Bashir v. The State PLD 1995 SC 34 wherein bail was granted holding that when offence is punishable up to 10 years, the bail has to be granted as a rule, the applicants are entitled to the grant of bail. Accordingly, the applicants Jabbar Shah and Nawab Shah, both sons of Sanwal Shah are granted bail provided they furnish surety in the sum of Rs,50,000 each and P.R. Bond in the like amount to the satisfaction of the trial Court.