IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Criminal Bail Application No. S-397 of 2021

                                   

 

            Applicant                  :           Saeed Ahmed s/o Sahib Khan Khoso, through Mr. Achar Khan Gabol, advocate

           

            Complainant            :           Mushtaq Ahmed s/o Muhammad Khan Soomro, through Mr. Sikandar Ali Junejo, advocate

                                                                           

            Respondent              :           The State, through Mr. Shafi Muhammad Mahar, Deputy Prosecutor General, Sindh

                                                               

            Date of hearing        :           13.09.2021 

            Date of order            :           13.09.2021

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                                                          ORDER

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ZAFAR AHMED RAJPUT, J.-       Applicant/accused Saeed Ahmed being abortive to get the concession of post-arrest bail from the Court of Additional Sessions Judge, Kandiaro in Cr. Bail Application No. 906 of 2021, vide order dated 23.06.2021, through the instant application seeks the same concession from this Court in Crime/FIR No. 79 of 2021, registered under sections 397, 337-H (2), P.P.C. at Police Station Kandiaro.

 

2.         As per FIR, on 29.04.2021, at 1625 hours, present applicant, along with co-accused Suhrab, Bashir Ahmed and three unidentified accused, duly armed with pistols, stopped the complainant Mushtaq Ahmed, his brother Muhammad Ramzan and relative Khan Muhammad. Co-accused Bashir Ahmed robbed cash Rs. 5000/- from complainant, while applicant and co-accused Suhrab tried to rob bag of amount from brother of the complainant. On their resistance, co-accused Suhrab and applicant fired on complainant’s brother on his right and left legs, respectively, while un-identified accused fired on complainant’s brother which hit on his left leg, then co-accused Suhrab robbed cash amount of Rs. 3500/- from the pocket of the complainant’s brother and un-identified accused robbed the bag containing Rs. 2, 25,000/=, for which, the accused were booked in the instant case. 

3.         Learned counsel for the applicant has mainly contended that the applicant is innocent and has falsely been implicated in this case by the complainant with mala fide intention and ulterior motive; that the applicant was detained by the police of P.S. Kandiaro in wrongful confinement for want of illegal gratification and such Cr. Misc. Application No. 162/2021, under section 491, Cr.P.C., for recovery of applicant was filed before the Sessions Judge, Naushehro Feroze, which was disposed of accordingly, but due to non-payment of illegal gratification, police implicated the applicant in the instant false case; that there is delay of five days in lodgment of FIR, which has not been explained by the  complainant; that the role of applicant is causing fire arm injury to the injured on non-vital part (leg), which will be determined, so also veracity and genuineness of the prosecution case, at the trial; that no reasonable grounds exists to believe that the applicant has committed the alleged offence; which is being punishable for seven years does not fall within the prohibitory clause of section 497, Cr. P.C., as such, he is entitled for the concession of bail.

 

4.         Per contra, learned counsel for the complainant has vehemently opposed the instant application on the grounds that the applicant is nominated in the FIR by name and he is involved in number of criminal cases; that the PWs have fully implicated the applicant with commission of alleged offence in their statements recorded under section 161, Cr.P.C.; that after his arrest, police recovered the pistol used in commission of alleged offence and Rs. 12,000/- from the applicant.

 

5.         The learned D.P.G. while adopting the arguments of learned counsel for the complainant has maintained that the applicant is involved in at least nine cases of similar nature.  

 

6.         Heard the learned counsel for the applicant, complainant, D.P.G and perused the material available on record with their assistance.

7.         It appears from the tentative assessment of the record available with the prosecution that the applicant is nominated in the FIR by name with specific role of causing firearms injury to the brother of the complainant on offering resistance by him to the robbery. No enmity with the complainant has been alleged to implicate the applicant falsely in commission of alleged offence. It further appears that the applicant was arrested on 03.05.2021 in another crime bearing FIR No. 45/2021, registered under Section 395, P.P.C. at P.S Muhbat Dero, after four days of alleged incident, and then om 07.05.2021, he led the police party and got recovered robbed amount of Rs.12,000/= and the pistol, which he had allegedly used in the commission of alleged offence. The criminal record of the applicant also shows that, besides the instant case, he is also involved in at least six other cases of P.S Kandiaro bearing Crime Nos. 129/2010, 130/2010, 233/2014, 287/2014, 289/2014, 80/2021.

 

8.         As regard the contentions of learned counsel for the applicant, it appears that the mother of the applicant filed Cr. Misc. Application No. 162/2021, under section 491, Cr.P.C., before the Sessions Judge, Naushehro Feroze, on 03.05.2021, for the recovery of applicant, alleging that, on 02.05.2021, Kandiaro police arrested him and detained in wrongful confinement. The said application was disposed of by the learned Sessions Judge on the same day by observing that the applicant was arrested by Muhbat Dero police in Crime No. 45/2021 on 03.05.2021 at 1100. So far delay in lodging of the FIR is concerned, It may be observed that the brother of the complainant received three firearms injuries on his both legs through and through in the incident; after obtaining letter from police for treatment, he was taken to Kandiaro Hospital, from there he was shifted to P.M.C.H, Nawab Shah and then instant FIR was lodged by the complainant, as such, plausible explanation with regard to delay in lodging of FIR is available. Even otherwise, the delay in lodgment of FIR ipso facto is no ground for granting bail to an accused.

 

9.         The offence under section 397 P.P.C. is non-bailable and in non-bailable offence grant of bail is not the right of an accused but a concession. Although the alleged offence caries punishment for seven (07) years; as such, prohibition of section 497 Cr.P.C. does not attract but considering the fact that the offences like robbery/dacoity are frequently reported to have been committed without any restriction in urban and rural areas; not only creating scare among the people but ruining the safety of the life and property of law abiding citizens and also generating sense of insecurity amongst public at large; and also bearing in mind that the accused is involved in series of criminal cases, he is not entitled to concession of bail, so far the merit of the case is concerned.

 

10.       As a result of above discussion the instant application is dismissed. The above observations are tentative in nature for the disposal of bail application and shall not influence the trial Court while deciding the case on merits.

 

JUDGE