IN THE HIGH COURT OF SINDH

CIRCUIT COURT MIRPURKHAS

 

Crl. Bail Application No.S-93of 2024

DATE         ORDER WITH SIGNATURE OF JUDGE

 

For hearing of main case.

 

11.07.2024

 

Mr. Muhammad Asif Zai, advocate a/w applicant.

Mr. Dhani Bakhsh Mari, Assistant P.G a/w S.I.P. Kamran Halepoto of P.S. Mehran.

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ORDER

 

Khadim Hussain Soomro, J:Applicant Muhammad Adnan seeks pre-arrest bail in F.I.R No.98/2023 for offence U/S 394, 337-A(i), 337-L(ii), F(vi), F-(i), 460 and 34 P.P.C of P.S. Mehran, after the rejection of his bail plea by the learned trial court vide order dated 22.05.2024. 

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2.      Brief facts of the prosecution case are that on 22.12.2023, complainant Ramesh Kumar lodged F.I.R., alleging that he was Vice President of the Lohana community. On 22.12.2023 at about 3:00 AM, a watchman,Dur Muhammad, was on duty at the Mandar on Seed Farm Road, Mirpurkhas; he informed him that four persons arrived in a rickshaw and attacked him. Among them, three had their faces covered; one was an older man with a white beard. They demanded the keys to the Mandar, and when Dur Muhammad refused, they assaulted him with iron rods, a knife and a hammer and caused him injuries. They also robbed an amount of Rs.10,000/- and his mobile phone tied him up, and threatened to kill him if he cried. After breaking the lock of the Mandar's room, they stole various items and fled in the same rickshaw. While Dur Muhammad couldn't identify the muffled persons, he could identify the person with an open face. Upon receiving this information, he and Preem Das went to the Mandar and found Dur Muhammad injured.They took him to Civil Hospital Mirpurkhas for treatment and then returned to the Mandar, where they found several items missing. Then, the complainant lodged F.I.R.

3.       Learned counsel for the applicant submits that the applicant has not been nominated in the F.I.R.The present applicant has been implicated on the basis of further statements recorded by the complainant on 26.03.2024; after the lapse of 04 months regarding such a delay, the complainant has failed to give any persuasive explanation. He further stated that the applicant was granted post-arrest bail; however, during the course of the investigation, new sections 460 and 337-F(vi) were added; therefore, the applicant applied for pre-arrest bail, which was subsequently declined by learned Additional Sessions Judge-II, Mirpurkhas; the trial court has granted pre-arrest bail to the co-accused Abdul Razzaq pre-arrest bail. Lastly, he prayed for confirmation of the bail.                

4.       On the other hand, learned A.P.G submits that there is no malafideon the part of the prosecution to implicate the applicant in the commission of the offence; as soon as the complainant came to know that the present applicant was involved in the theft, he recorded his further statement. He further submits that the injured Dur Muhammad also identified the present applicant as a real culprit.  

5.       Heard learned counsel and perused the material available on record.

6.       The perusal of the recordtranspires that the applicant is not nominated in the F.I.R. He was joined in the present case on the basis of further statement of the complainant and injured after a lapse of 04 months without stating how they came to know about the involvement of the present applicant in the commission of the offence.Any statement of prosecution witnesses, if recorded at a belated stage, loses its sanctity. Reliance can be placed on the case of  Noor Muhammad v. The State  2020 SCMRpage No 1049.

7.       During the course of the investigation, no identification parade was held. The statement of injury recorded under section 161 CrPC by the I.O. did not disclose the name of the present applicant. As per the contents of the F.I.R., various articles, descriptions of which are given in the F.I.R., were boarded in the Rakshaw by the applicant accused, which is not prima facia possible.

8.       The co-accused, Abdul Razaque, has been granted pre-arrest bail by the trial court, and the case of the present applicant accused is identical to that of the accused.Therefore, the rule of consistency or parity is applicable to the facts of the present case and the applicant accused also deserves the same treatment to be meted out. Reliance can be placed on these case laws of the apex court. Mst. ASIYA V/S The STATE and another, 2023 S C M R 383. SHAHZAD V/S The STATE and another 2023 S C M R 679. Muhammad Fazal alias Bodi v.The State (1979 SCMR 9), Muhammad Ajmal v.The State (2022 SCMR 274) and Muhammad Usman Shakir v.The State (2021 SCMR 1880).

9.        In view of the above, the instant bail application is allowed, and the interim pre-arrest bail already granted to the applicant is hereby confirmed on the same terms and conditions.

10.       The observations made in this decision are of a tentative nature and will not influence the merits of the case.

 

                                                                                          JUDGE

 

 

 

 

 

*Faisal*