Syed Aijaz Ali Shah (Applicant) VS The State (Respondent)

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IN THE HIGH COURT OF SINDH, CIRCUIT COURT

HYDERABAD

1.Cr. Bail A. No.S- 855 of 2019

Muhammad Sohail

Versus

The State

2.Cr. Bail A. No.9 939 of 2019

Syed Aijaz Ali Shah

Versus

The State

Applicant : Muhammad Through Agha Ghulam Abbas, Advocate Sohail in Cr. B.A. No.} 855 of

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Applicant : Syed Aijaz Ali Through Syed Shahzad Ali Shah, Advocate Shah in Cr. B.A. No.$ 939 of

Respondent : The State Through Mr. Aslam Pen'ez Khan, Assistant Attorney General Ior Pakistan

Date of hearing 08.06.2020

Date of order 10.06.2020

ORDER

MOHAMMAD KARIM KHAN AGHA ,I..8 y this single order I intend to dispose of the aJorementioned two criminal bail applications as the same relate to one and the same incident as well as F.l.R.

2.Through captioned bail applications bearing Nos.9855/2019 and 939 of 2019, applicants Muhammad Sohail and Syed Aiiaz Ali Shah seek Post-arrest bail in Crime No.08/2016, registered at Police Station FIA, Crime Circle, Hyderabacl, under sections 462C, 4628, '109, 161 PPC r/w section 5(2) Prevention of Corruption Act-II, 1947 PPC. Earlier their bail plea(s) were declined by order dated 09.08.2019, passed by the learned Additional Sessions judge-ll, Kotri.

3.Briefly the facts as narrated in the F.l.R. by complainant Imdad Ali Shah .t are that on 29.03.2016 at 19:05 hours at Police Station FIA Hyderabad the officials

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of SSGCL came to know that theft was being committed in Shahbaz CNG Station by tampering the main gas distribution pipeline. The officials of SSGCL alongwith FIA team conducted a raid and found that the theft of natural gas was being committed for considerable time at the said CNG Station. It was revealed that present Applicants alongwith the absconding accused were responsible for such gas theft causing loss of Rupees 15,55,58,313.90 to the public exchequer. It was also revealed one of the official of S.SGCL namely Raza Muhammad Shaikh has nexus in such gas theft under some monetary benefit as illegal gratification.

Such F.l.R was registered against the present applicants and thier other accomplices.

4.It is added that all accused / applicants were Put to trial before Special Judge, Anti-Corruption (Central) Hyderabad and were convicted and sentenced vide judgment dated 28.02.2019. All of them thereafter filed criminal appeals before this Court against the impugned judgment and this Court vide judgment dated 29.04.2019 set aside the said impugned judgment by holding the trial as coram non judice and remanded the case to the Gas Utility Court, Jamshoro for de-novo trial from the stage of charge. As far as the accused who were granted bail either by this Court or the Special Judge Anti-Corruption (Central) Hyderabad were ordered to remain on bail but subject to furnishing fresh surety(ies). Thereafter, both present Applicants/ accused have moved applications for their admission on post-arrest bail, which by means of order dated 09.08.2019, were dismissed.

5.Leamed counsel for the applicants have contended that both the applicants are innocent, that they have been behind bars for over 4 years and as such this is a case of hardship and the applicants should be released on bail on this ground, they also contend that their co-accused Abid Gaho, Ghulam Shabbir and Raza Muhammad Shaikh have already been granted bail in this case by this court and thus based on the rule of consistency they should also be granted bail as their role is lesser or no greater than than their role and that they have a good case on merits in that that prosecution could not { produce eye-witnesses to prove that applicants were stealing the Gas; that the complainant who is material witness did not identify the applicants and with regard to applicant Muhammed Sohail he is not even named in the FIR. In support of their contentions they have relied on Adnan Prince V The State through P.G., Punjab and another (PLD 2017 Supreme Court 147), Muhammad Akram V The State (2020 PCT.LJ 3l ), Syed Manzar Abbas V National Accountability Bureau, through Director General (2019 MLD 581), Shahzad Khan V The State (2018 PCT.LJ 104), Muhammad Amin V The State (2017 YLR 609), Muhammad Arsalan Ahmed V The

tfz State (2017 PCT.LJ 434), Mehtab Ahmed V The State and others (2015 YLR 1132) and Behram V The State (2003 PCr.Lj 73).

6.On the other hand leamed AAG has contended that the applicants have applied for bail on numerous occasions alt of which bail applications have been dismissed on merits. that the applicants have not applied for bail on hardship grounds, that no tiesh ground for bail has been made out by the applicants, rhat there is more than sufficient

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material on record to connect both the appticants to the offense and as such the both the applications of the applicants for post arrest bail should be dismissed. In support of his contentions he has placed reliance on Alamgir Khan V The State and another (2019 SCMR 1457), Muhammad Dildar V The State (2018 MLD 169) and two unreported orders dated 08.03.2019 and 03.10.2019. passed in Cr. B.A.Nos.S-842 of 2018 and 872 of 2019, respectively.

7.t have heard leamed counsel for the parties, considered the record and the relevant Iar.r' including the authorities cited at the bar.

8.In my view a fresh ground has been raised and that is of hardship which can be raised orally or though pleadings provided that material is placed on record !o support the contention. I have noticed that the ground of hardship has been raised in both the pleadings and the oral submissions. It is an admitted fact that both the applicants were arrested on 20.04.2016 which is 4 years and 2 months ago and thus with remission they have probably already served out about 6 years of any sentence which may be handed down to them on conviction and that the maximum sentence on conviction is up to l0 years. Vide order dated 29.04.2019 this court remanded the case back for a de novo trial. So far the charge has been frarned but no witness has recorded his evidence. I have been informed by leamed AAG that there are about 8 PW's rvho will need to be examined and that the matter is presently not proceeding due to no fault of the applicants neither has it been asserted that the applicants have caused any delay in the conclusion of the trial and it appears that the trial is at the initial stages and will not be concluded ir.r the foreseeable future. Keeping in view this background I am of the view that both the applicants are entitled to post rest bail on hardship grounds. Even other wise it would appear that other co-accused have already been granted post arrest bail rvhose role in the case is not less than that of the applicants and as such the applicants would also be entitled to post arrest bail based on the rule ofconsistency.

9.Thus, both the applicants are granted post arresl bail subject to fumishing solvent surety and PR bond in the like amount to the satisfaction ofthe trial court in the amount of RS 10 lacs.

10.Both bail applications stand disposed of in the above terms.

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p.--b. \*-Jre..n-;.- f\i,.r+{f U ghe-t/ GI.I"\-.q e+z'-,')rv-s-;z rs3 CE FICATE FT HEC tJ RTI NR FGARD T o R EPORTI NG

CRIMINAL IAIL APPEAL NO. D-315 OF 2012

CONFIRMATION CASE NO. D-16 OF 2012

Soomar Bheel V/S The State

I CRITVIINAL JAIL APPEAL NO. D.326 OF 2012

KHAMISO BHEEL V/S THE STATE

SINDH HIGH C oLl RT CIR tl IT COURT HYDERAB AD Composition of Ben ch

HON'BLE MR. USTICE M OHAMM D KARI KHAN AGHA

HON'BLE MR. J USTICE RA SHEED AH MED SOO MRO (D.B)

Dole of lost heoring (heord/reserved): 09-06-2020 Decided on: 16-06-2020

(o)Judgment opproved for reporting YES

CERTIFICAIE

Certificote thot the Judgment/Order is bosed upon or enunciotes o principle of low/decide o quesiion of low which is of first impression/distinguishes over-rules/exploins o previous decision.

Strike-out whichever is not opplicoble.

NOTE: - {i) This slip is only to be used when some oction is to be loken.

(ii)lf the slip is used, lhe Reoder must oltoch it to ihe lop of the firsi Poge ol the Judgment.

(iii)Court Associote must osk the Judge wrilten the iudgmenl whelher the iudgment is opproved for reporling. {iv) Those directions which ore not lo be used should be deleted' SGP. KorL (iii) 773-2000-4-2003-lll

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ORDER SHEET

HYDERABAD

IN THE HIGH COURT OF SINDH, CIRCUIT COURT

Criminal Jail Appeal No'D-315 of 2012 Confirmation Case No'16 of 2012 Criminal Jail Appeal No D-326 of 2012

DATE ORDER WITH SIGNATURE OF JUDGE(S)

Mr. Mian Taj Muharnmad Keerio, Atlvocate for appellant in Criminal Jail Appeal No.D-3 I 5 ol2012'

Ms. Nasira Shaikh, Advocate for appellant in Crirninal Jail Appeal No.D-326 of 2012.

Mr. Waseem Hussain Jafferi, Advocate for cotnplainant Ms. Rarneshan Oad, Assistant P'G'

LeamedCounselforappellantshavereadouttheentiree.r.idence. Leamed Counsel for appellant Soomar Bheel in Crirninal Jail Appeal No D-3 l5 ,t- ofZOl2,leamedCounselforappe|lantKharnisoBheelinCriminalJailAppeal have made No.D-326 of 2012 and learned Assistant Prosecutor General' Sindh their submissions. However, learned Counsel for the cornplainant has adopted the arguments of leamed Assistant Prosecutor General, Sindh' Reserved lor.iudgment.

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JUDGE

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