IN THE HIGH COURT OF SINDH, CIRCUIT COURT,
LARKANA
Crl. Bail Appln. No. S- 736 of 2023.
Applicants: Rashid alias Muhammad Ali and Suhail Ahmed, through Mr. Ameer Hussain Solangi, Advocate.
Complainant: Aftab Ali, through Mr. Wakeel Ali Shaikh, Advocate.
Respondent: The State, through Mr. Ali Anwar Kandhro, Additional Prosecutor General.
Date of hearing: 29.01.2024.
Date of order: 29.01.2024.
ORDER
Muhammad Saleem Jessar, J: Through this bail application, applicants Rashid alias Muhammad Ali and Suhail Ahmed seek pre-arrest bail in a case registered against them vide Crime No. 17 of 2023 at P.S Veehar, under Sections 380, 457 and 34 P.P.C., after their bail application was declined by Additional Sessions Judge-IV, Larkana, vide his Order dated 20.11.2023.
2. The facts of prosecution care as depicted from para 2 of the impugned order, read as under:
“Complainant Aftab Ali lodged his F.I.R on 16.10.2023 at P.S Veehar, Larkana, being Crime No.17/2023, wherein he stated that on 14.10.20234 at 02.00 a.m., he his cousin Hazoor Bux, maternal uncle Deedar Ali and other family members were sleeping in their house, when at about 02.00 a.m. and solar bulbs in the house were turned-on. They got up on some noise and saw that some persons, armed with pistols, had entered into the house, who were identified to be Aamir Ali alias Taando, Muhammad Ali Machhi, Sohail Machhi and an unidentified. They had following belongings of complainant party in their hands, which they had stolen from an almirah in the house. Complainant party remained silent due to fear of weapons in the hands of accused persons and after their departure they checked that following articles were missing from their house namely two pairs of leelam of gold (earrings), one necklace of gold, fifteen pairs of ladies clothes, five pairs of gents clothes and cash of Rs. 100,000/-, total value of all stolen articles Rs.7.40,000/-. Thereafter, at first, complainant party approached a notable of their locality, who was not available in village at that time and he returned on 16.10.2023; therefore, on that day at 04.00 p.m. the complainant lodged aforementioned F.I.R.”
3. Learned counsel for the applicants mainly contended that, malafides on the part of the complainant party are clear from the fact that he has roped in all seventeen persons from one and same family in this case; that F.I.R is delayed for about two days and explanation furnished for such inordinate delay is not plausible; that the alleged incident is said to have taken place in odd hours of night and source of identifying the culprits being solar bulb light is very weak type of source and cannot be relied upon. Lastly, learned counsel submitted that applicants have joined the trial and attending trial Court regularly and have never misused concession of interim pre arrest bail. In support of his contentions learned counsel placed his reliance upon 2001 P.Cr.L.J 344; 2011 MLD 677 and 2021 YLR Note 85.
4. On other hand learned Addl. P.G. appearing for the State conceded for confirmation of bail in view of the submissions made by learned counsel for the applicant.
5. Conversely, learned Advocate for complainant opposed grant of application on the grounds that the applicants have been nominated in the F.I.R with specific role; that there are no malafides on the part of complainant to falsely implicate the applicants in the case and that the offence under Section 457 P.P.C falls within prohibitory clause of Section 497 Cr.P.C. Learned counsel relied upon 2000 P.Cr.L.J 1894 and 2005 MLD 472 [Karachi].
6. Heard learned counsel for applicants, learned Addl. P.G. as well as learned Advocate for complainant and perused the material available on record.
7. It appears from the record that, that no doubt applicants are nominated in the F.I.R, but the F.I.R has been lodged with delay of about two days, therefore, the possibility of the applicants’ false implication in this case after consultations and deliberations cannot be ruled out and the F.I.R would not be of much sanctity. It is well settled law that the delay in reporting the matter to police is being usually caused due to factors i.e. deliberation, negotiation, discussion, therefore, it is falling within the ambit of deliberation and afterthought, as such it is always considered to be fatal for the prosecution case making the case of accused one of further enquiry. Moreover, the alleged incident is said to have taken place in odd hours of night and source of identifying the culprits being solar bulb-light, which is very weak type of source. The case is being tried by the Magistrate, as such, in such event the sentence for more than three years cannot be visualized. Moreover, the applicants have joined the trial and regularly attending the trial Court and no complaint with regard to misuse of concession of interim bail has been brought on record. It is settled law, that every accused would be presumed to be blue eyed boy of the law until and unless he may be found guilty of the alleged charges and the law could not stretched upon in favor of the prosecution particularly at bail stage. It is also settled law that, if any slightest doubt arises in the case of prosecution, its benefit must be extended in favor of the accused, even at bail stage. Reference in this regard can be had from the case of Amir v. The State (PLD 1972 S.C 277).
8. In view of foregoing, prima facie the applicants have succeeded to bring their case within the purview of subsection (2) of Section 497, Cr.P.C. Consequently, instant bail application is hereby allowed. Resultantly, interim pre arrest bail already granted to applicants, vide Order dated 11.12.2023 is hereby confirmed on same terms and conditions.
9. Before parting with this order, it is worth to point out that observations made hereinabove are tentative in nature and shall not prejudice the case of either party at trial.
Judge
Ansari