IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Bail application No.S- 694 of 2019

Date	Order with the signature of Judge

For the hearing of the main case.

24-01-2020

Mr. Jalal-ul-din M Akbar Chandio, Advocate for Applicant

Mukhtiar Ahmed Shoro, Advocate for Complainant.

Mr. Khalil Ahmed Maitlo, DPG

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O R D E R

Zulfiqar Ali Sangi,J: Through the instant application, the applicant/accused Atta Muhammad S/o Jan Muhammad @ Jhuloo Janwari, seek Post-arrest bail in FIR No.109/2019, registered at Police Station “B” Section Khairpur, under Sections 395, 337L-ii, P.P.C. Applicant/accused, filed post-arrest bail before learned Additional Session Judge-IV Khairpur in Sessions case No. 507 of 2019 which was declined vide order dated 19.09.2019, after such applicant through his counsel approached this court for the same relief.

2. Brief Facts of the prosecution case are that on 04.06.2019, at about 2100 hours, the complainant Mst. FilzaHamid W/O Dr. Agha Hamid Khan Pathan got registered the FIR at above PS, for the offence allegedly shown to have been taken place on 12.05.2019 at 0430 hrs; as per FIR complainant stated that her husband Agha Hamid Nawaz Pathan is Doctor at CDA Islamabad and is residing at Islamabad; she, her sister ParveenAkhtar, her nephew Agha Kamran S/O Agha Haq Nawaz and his wife Mst:Shahzia Kamran used to reside with each other. On 11.05.2019 they usually after having a night meal, closed the outer door and went to sleep inside the house. On 12.05.2019, they wokeup for Sehri of Ramzan and they open the door, Agha Kamran after taking Sehri went to offer Namaz/prayer outside of house, while others were offering prayer inside the house, then complainant, ParveenAkhtar, and Shazia Kamran went inside the room, it was about 4.30 am time, 05 armed accused entered into their room, and complainant party saw and identified two accused namely Atta Muhammad 2. Shah Muhammad alias Shahoo both sons of Jan Muhammad Janwari R/O SadoroJanwari and 03 unidentified accused, whose faces were opened, and they were seen on the electric lights and would be identified if seen again by complainant party, then all accused pointed out weapons upon them and controlled while saying that nobody should cry, due to fear of weapons complainant party remained silent, the unidentified accused robbed Golden Ornaments and cash amount from Almirah, “detail is mentioned in the FIR”, accused Atta Muhammad and Shah Muhammad alias Shahoo removed golden bangles and Locket from arms and neck of complainant, on which she resisted with the accused, on such resistance, both accused caused butt blows to complainant, which hit on her face and left shoulder, then complainant party raised cries, on such cries, all the accused after taking robbed gold and amount left the house; in the meantime, Agha Kamran also arrived and he also saw and identified the accused; then accused persons filed away. Thereafter complainant party narrated such facts to Kamran, and then complainant party accompanied by Agha Kamran came at PS “B” Section Khairpur; wherefrom obtained letter for treatment for Civil Hospital Khairpur and after free from treatment appeared at police station lodged FIR that accused Atta Muhammad and Shah Muhammad alias ShahooJanwari along with 03 unidentified accused in collusion with each other’s duly armed with deadly weapons entered into the house and robbed away 06 Golden Bangles weights about 06 Tolas, one Golden Locket weight about 03 Tolas, one golden necklace set weight about 03 Tolas, one golden bracelet set weight about 02 Tolas, 08 gold rings weights about 05 Tolas and cash amount Rs. 80,000/- total worth Rs, 14,10,000/-.

3. After the registration of FIR applicant filed pre-arrest bail application which was dismissed by the court of IV Additional session judge Khairpur vide order dated: 15-06-2019.Thereafter application for post-arrest was filed on his behalf but the same was also dismissed by the same court vide order dated: 19-09-2019, hence this application has been filed on behalf of the applicant.

4. Learned counsel for the applicant contended that the applicant is innocent and involved by the complainant due to enmity; that there is delay in registration of FIR for about 22 days which has not been explained by the complainant; that FIR No: 32of 2019 was registered by Agha Kamran Pathan at police station B section Khairpur against the present applicant and after trial applicant was acquitted vide judgment dated: 17-06-2019; that before the present FIR applicant was arrested and was detained in the lockup, therefore, the cousin of applicant filed application under section 491 Cr.P.C on such raid was conducted and applicant was found in custody such application was then disposed of vide order dated: 23-05-2019; that due to enmity Agha Kamran managed the present case; that identification of applicant and his brother by the ladies with parentage creates very serious doubt as there is no evidence that complainant earlier seen the applicant and his brother; He further contended that offence does not fall within the prohibitory clause of section 497 (1)Cr.P.C and lately contendedthat case is one of further inquiry and applicant is entitled to grant of bail and prays for the relief of bail.

5. learned DPG assisted by the counsel for the complainant contended that the applicant s nominated in the FIR with specific role; that all the prosecution witnesses fully supported the version of complainant; that applicant entered in the house of complainant and caused injuries to the ladies; that applicant along with other accused robbed the golden armaments which detail is given in the FIR; that recovery was effected from the applicant; thatthe offence for which applicant is allegedly charged fall within the prohibitory clause of section 497 (1) Cr.P.C; lastly they pray that application of applicant may be dismissed.

6. Heard learned counsel for the parties and perused the material available on record with their able assistance.

7. Admittedly incident took place on 12-05-2019 and FIR was registered on 04-06-2019 after about 22 days, complainant went to hospital on the same day and provisional certificate was also issued on the same day whereas final medical certificate was issued on 21-05-2019 but complainant from 21-05-2019 till FIR was silent she approached thepolice on 04-06-2019 for registration of FIR, explanation furnished for such a delay is not satisfactory and in these circumstance entire story is deemed to be managed one.

8. The final medical certificate was issued by the doctor wherein injuries declared as other hurts and are simplefor which punishment is provided only two years and arebailable.

9. Recovery shown from the applicant is also doubtful as it was shown recovered on 16-06-2019 and Agha Kamran was shown mashir of recovery who was already on inimical terms and no identification was conducted to prove that the articles recovered from the applicant were the same which were allegedly robbed from the complainant.

10. Learned counsel placed on record the copy of judgment dated: 17-06-2019 in the said case applicant was shown driver of the Agha Kamran who is mashir in the present case and after the trial present applicant was acquitted. Applicant also place order dated: 23-05-2019 with this bail application which showed raid was conducted and applicant was recovered, at first instance police failed to produce any record of his arrest before the raiding Magistrate and subsequently produced the record of his arrest all these things suggest false implication of the applicant in the present caseand make the case one of further inquiry.

11. It is a well-settled principle of law that mere heinousness of offence is no ground to reject the bail plea.The basic concept of bail is that no innocent person's liberty is to be curtailed until and unless proved otherwise. The essential prerequisite for the grant of bail by subsection (2) of section 497, Cr.P.C. is that the court must be satisfied based onthe material placed on record that there are reasonable grounds to believe that the accused is not guilty of an offence punishable with death or imprisonment for life. Condition of this clause is that sufficient grounds exist for further inquiry into the guilt of the accused which would mean that question should be such which has nexus with the result of the case and can show or tend to show that the accused was not guilty of offence with which he is charged. Grant or rejection of bail is a discretionary relief but such discretion should be exercised fairly and judicially. The word discretion when applied to court means sound discretion judiciously guided by law and to lessen the hardship of the people. It is the well-settled and basic principle of law that the bail is not to be refused as punishment.

12. The challan against the applicant was submitted under sections 395, and 337 L2 P.P.C. Section 395, P.P.C. provides punishment with imprisonment for life or rigorous imprisonment for a term not less than 4 years' nor more than 10 years whereas sections337 L2, P.P.C. does not carry punishment beyond 2 years and bailable. Since section 395, P.P.C. provides alternate sentences and in Shahmoro's case 2006 YLR 3167 while considering the lesser sentence as provided in section 395, P.P.C. this Court granted bail to the accused to somewhat similar circumstances. In view of above and the dictum laid down in Shahmoro's case (Supra), I am of the considered view that applicant has succeeded to make out a case for bail as there are no reasonable grounds to believe that he has committed the offence punishment with death, imprisonment for life or 10 years. Consequently, the application is allowed. Let the applicant be released on bail on furnishing a solvent surety in the sum of Rs.100,000 (One lac) and P.R. bond in the like amount to the satisfaction of the trial court.

13. Observations made hereinabove are tentative and will not cause any prejudice to either party at the trial.

JUDGE