ORDER SHEET

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Cr. Bail Application No.S-783 of 2021

 

Date

               Order with signature of Judge

           

 

Applicant:                                  Imran and another, through

                                                  Mr. Zulfiqar Ali Panhwar, Advocate

                                                 

 

Complainant:                             Baharo @ Gul Bahar, through

                                                  Mr. Irshad Ali Ghanghro, Advocate

 

State:                                         Through Mr. Shafi Muhammad

                                                  Mahar, Deputy Prosecutor General

 

Date of hearing:                         28.02.2022

 

Dated of order:                           28.02.2022

                                                 

 

O R D E R

 

Zulfiqar Ali Sangi, J:  Applicants/accused Imran Brohi and Ali Hassan Brohi are seeking their post-arrest bail in FIR No.43/2021, registered at Police Station Bhiria City, under sections 364, 302, 201, 148 and 149 PPC. Their earlier post-arrest bail plea was declined by the learned I-Additional Sessions Judge, Naushahro Feroze vide order dated 23.10.2021.  

2.           As per FIR, the allegations against the applicants is that on 29.04.2021, at about 2.30 p.m, they along with their companions Niaz, Sikander and two unidentified persons duly armed with pistols kidnapped complainant’s nephew Sumair Ali from Abandond Mori in presence of  complainant Baharo and PW Muhammad Ameen and said that they will commit his murder. Complainant party kept on searching Sumair Ali but on 03.05.2021 his dead body was found lying in the banana garden of Syed Hassan Ali Shah, hence such FIR was lodged.

3.                Learned counsel for the applicant has contended that there is delay of five days in registration of FIR which has not been explained properly. He next contended that the applicants are innocent and have falsely been involved in this case with malafide intention and ulterior motive. He also contended that no motive to commit such offence is shown and all the PWs are close relatives of the complainant and it is not possible that accused without hiding their identity would kidnap the a nephew of complainant in his presence and witness and all these factors makes the case one of further enquiry. Applicants are in custody and no more required for further investigation, therefore they be admitted on post-arrest bail. He in support of his contentions placed reliance on 2018 P.Cr.L.J 598.

4.           Counsel for the complainant opposed the grant of bail on the ground that the applicants are nominated in the FIR with the specific role of kidnapping of nephew of complainant and the offence falls within prohibitory clause of section 497 Cr.P.C as such they are not entitled for concession of bail. He in support of his contentiona relied on the cases reported as 202 P.Cr.L.J 1114, 2008 P.Cr.L.J 1555, 2012 YLR 983, 2012 P.Cr.L.J 1331 and PLD 2014 Sindh 538.

5.           Learned DPP also opposed the bail contending that the applicants are nominated in the FIR who have committed heinous offence which carries capital punishment as such they  are not entitled for concession of bail.

 

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

 

7.           Admittedly there is delay of five days in lodging of FIR which has not been explained by the complainant. It is not acceptable to a prudent mind that the complainant’s real nephew was kidnapped in his presence by the applicants whom he already knows but he remained mum for five days and even an entry was not kept at the concerned Police Station immediately after kidnap of his nephew which makes the case of applicants one of further enquiry specially when no motive for committing such offence is shown against the applicants. Record shows that the applicants remained on physical remand but nothing was recovered from them, case has been challaned and applicants are no more required for investigation who are behind bars for 10 months from their arrest i.e 07.05.2021. Mere involvement in heinous offence is no ground for refusing bail to an accused who otherwise became entitled for the concession of bail.

8.           It is settled principle of law that the deeper appreciation of evidence is not permissible at bail stage and bail application is to be decided tentatively on the basis of material available on record. From the tentative assessment of the material available on the record, the applicants have made out their case for grant of post-arrest bail. Resultantly, their bail application is allowed and applicants are admitted to post-arrest bail subject to their furnishing solvent surety in the sum of Rs.100,000/-(rupees one lac) each and P.R bond in the like amount to the satisfaction of the trial court.

 

9.           Observations made herein above are tentative in nature and will not cause any prejudice to either party at the trial.

 

 

                                                                             JUDGE

 

Suleman Khan/PA