1. AQEEL AHMED ABBASI', J. This bail application is filed against the order passed by the learned IVth Additional Sessions Judge, East at Karachi, in Sessions Case No,1015 of 2009, dated 29-5-2009 in F.I.R. No,373 of 2009 under sections 448/ 386, P.P.C. read with section 7(1) of the Sindh Public Property (Removal of Encroachment) (Amendment) Act, 2009 registered at Police Station Korangi Industrial Area, Karachi. The said bail application was dismissed on 29-5-2009 by the learned IVth Additional District Judge; East, Karachi. The brief facts as stated in the F.I.R. is as follows:-- "the complainant stated that I am residing at the above-said address at Column No,2, and, doing property work, I raise construction over my Plot No,85, section 6 H, Mehran Town, Korangi Industrial Area, measuring 240 sq. yds. Constructed boundary wall, one room, Kitchen and Bath Room due to non-facility of Gas and Electricity I was left the same, about one year .ago one Saeed Pathan occupied over my said plot, and started residing over the said plot, along with his family, I on several occasions asked him for leaving the plot, but he is not leaving the possession of my plot, and asked me. for Rs, 200,000 as Bhata then I will left the plot, I am real owner of the plot, I tried my .level best to return back the possession of plot from Saeed Pathan but could not succeed, now to report my claim against Saeed Khan Pathan demanding Bhata Tawan action may be taken; heard the report found correct."
2. The challan was submitted in the concerned Court of Korangi Industrial Area, Karachi, and the accused is facing trial before the learned trial Court.
3. Learned counsel for the applicant has vehemently argued that the instant case has been concocted and registered against the accused person by the complainant with the connivance of the police of Police Station KIA, Karachi with mala fide intention and ulterior motive.
4. It is argued that F.I.R. is lodged after delay of about one year from the date of incident of alleged offence, which is not explained by the complainant. It is further argued that the F.I.R. is silent about the time, date or any eye-witness of occurrence of alleged incident. It is argued that admittedly the accused/applicant is in possession of the said property for more than one year and no action admittedly been taken by the complainant against the accused person for the alleged offence of trespass or criminal offence as provided under the law. It was argued that the alleged offence does not fall within the prohibitory clause under section 497(2), Cr .P .C. There is a delay of one year and the case is highly doubtful and requires, further inquiry, therefore, the applicant/accused may be enlarged on bail.
5. Conversely the learned A.P.-G. along with I.O. Abdul Razzaq present in Court supported the impugned order passed by the learned ADJ (East). However, while confronted with the contents of the F.I.R. and challan submitted in the Trial Court, the learned A.P.-G. could not satisfactorily explain the veracity of the prosecution case about the alleged offence more particularly offence under section 386, P.P.C.
6. Learned counsel for the applicant has placed reliance on the following reported judgments:--
(1) 1995 SCM R 177, Mst. Daulan v. Sardara and 5 others.
(2) PLD 1995 Supreme Court 34, Tariq Bashir and 5 others v. The State.
(3) 1997 M LD 3045, Anjum Sheraz v. The State.
(4) 2004 YLR 3330 Noor Muhammad and another v. Muhammad Tufail.
(5) 2005 M LD 1267, Nooruddin and another v. The State.
(6) 2007 M LD 926, Muhammad Nadeem v. The State.
7. I have perused the F.I.R. and the case record. Section 448, P :P.C. and section 7(1) of Government of Sindh Public Property Removal Act, 2008 do not fall within the prohibitory clause in terms of section 497(2), Cr.P.C. Admittedly there is delay of about more than one year: moreover the time, date or any independent eye-witness about the alleged offence has not been mentioned in the F.I.R. The accused, as per admission of the complainant is in possession of the said plot for more than one year. Similarly ingredient of section 386, P.P.C. also appears to be missing in view of allegation in the F.I.R., neither the time/date of the alleged offence under section 386, P.P.C. has peen mentioned nor it has been alleged that the accused has issued threats or he has put the complainant in fear of death or of grievous hurt for extortion of money.
8. In the facts and circumstances of the case I am of the view that this is a case of further enquiry and the ingredients of section 386, Cr.P.C. on the face of the contents of F.I.R. and the challan submitted in the Trial Court are clouded, and in any case, requires further enquiry into the matter, therefore, the applicant/accused is, entitled for the grant of bail, which was A granted by this Court vide short order dated 23-11-2009 on furnishing of surety in the sum of Rs,100,000 with P.R. Bond in the like amount to the satisfaction of the trial Court. These are the reasons of the short order mentioned hereinabove.
9. However, it is clarified that the observations made herein are tentative in nature and shall not prejudice the merits of the case which may be examined strictly in accordance with law and on the basis of evidence on record. It is further expected that the learned trial Court shall also look into the nature and entitlement, right of possession of accused in respect of the property involved in this case.