IN THE HIGH COURT OF SINDH, CIRCUIT COURT
LARKANA
Crl. Bail Appln. No. S- 241 of 2023.
Applicants: 1. Fahad, 2. Nadir Ali, 3. Samand and 4. Saddam, through Mr. Muhammad Afzal Jagirani, Advocate.
Complainant: Aftab Zafar Siyal, though represented by Mr. Amanullah Luhur Baloch, Advocate, but both chosen to remain absent.
Respondent: The State, Mr. Ali Anwar Kandhro, Additional Prosecutor General.
Date of hearing: 01.02.2024.
Date of order: 01.02.2024.
ORDER
Muhammad Saleem Jessar, J: Through this application, applicants Fahad, Nadir Ali, Samand and Saddam all sons of Ghulam Farooq Siyal have sought for their admission to pre-arrest bail in Crime No.44 of 2022, registered at Police Station Bakrani (District Larkana), for offences punishable under Sections 395, 452, 427, 337-H (2), 504, 148 and 149 P.P.C. Their similar request was turned down by learned Additional Sessions Judge-I, Larkana, vide his Order dated 21.09.2022. Now, the case is pending for trial before the Court of IV-Additional Sessions Judge, Larkana, vide Sessions Case No.687/2022 re; The State v. Fahad Ali and others.
2. In nutshell, the case of prosecution is that on 11.8.2022 complainant Aftab Zafar Siyal lodged F.I.R with P.S Bakrani, to the effect that he has dispute over agricultural lands with accused Fahad Siyal and others and in the morning of fateful day the complainant along with his brother Noor Khan and maternal cousin Ghulam Rasool were present in the house, as such at about 1000 hours, there had been call at their door, as such they all came out of the house and found accused Fahad having kalashnikov, Nadir Ali, Samand, Saddam having pistols in their hands accompanying two unknown persons, who too were having pistols in their hands. It is further alleged by complainant in F.I.R that, the accused persons made aerial firing in order to create harassment and trespassed into house of complainant, where they caused damages to the house; looted two gold bangles, cash amount and one motorcycle and ultimately went away.
3. Learned counsel for the applicant mainly contended that, the applicants are innocent and they have been falsely implicated in this case by complainant due to previous ill-will and grudge; that F.I.R is delayed for about five hours; that there is long-standing enmity between the parties and prior to this F.I.R, the complainant party had already registered two F.I.Rs bearing Crime No.02/2026 and 39/2016 with P.S Bakrani against applicant party. Learned counsel further added that present complainant and brother murdered nephew of applicant Saddam and such F.I.R vide Crime No.48/2016 is registered by applicant with P.S Bakrani. Learned counsel has placed on record photocopies of aforesaid F.I.Rs. He next contended that, the sections applied in F.I.R except Section 395 P.P.C, do not fall within prohibitory clause of Section 497 Cr.P.C, whereas Section 395 P.P.C carries alternate punishments i.e. imprisonment for life or imprisonment less than four years and more than ten years and at the time of deciding bail application lesser punishment is to be taken into consideration. He lastly, submitted that applicants have already joined the trial and are regularly attending the trial Court.
4. Conversely, learned Add. P.G. opposed grant of bail in favor of applicants on the grounds that the applicants are nominated in F.I.R, and that the offence is heinous one entailing imprisonment for life.
5. Though the complainant himself is an Advocate and is also being represented by Mr. Amanullah Luhur Baloch, Advocate, but both of them have chosen to remain absent.
6. It appears from the record that, the applicants were admitted to interim pre arrest bail vide Order dated 10.05.2023 and on same day they furnished the required surety. However, for four dates of hearing, all the applicants attended the hearing, however on 11.09.2023 the applicants were called absent, therefore, the notice was issued to them, so also to their surety and on 30.11.2023 three applicants, namely, Fahad, Nasir Ali and Saddam appeared, while it was reported by police authorities that applicant Samand has left for foreign country. And, pursuant to notice issued to surety of applicants, surety, namely, Ghulam Farooq, put his appearance on 07.12.2023 and sought time to file reply of the notice and time was allowed, but thereafter the surety also did not turn, as such he debarred from filing defence. Accordingly, the bail application in respect of applicant Samand stands dismissed for non-prosecution and interim bail order dated 10.05.2023 to extent of applicant Samand is re-called. Since, surety Ghulam Farooque failed to produce the accused Samand in this Court, he has violated the bond executed by him, as such the surety-bond is liable to be forfeited. Accordingly, the surety-bond executed by him is hereby forfeited and fine of amount of surety-bond to extent of applicant Samand i.e. Rs.30,000/- (Thirty thousand rupees) is imposed upon him. The office is directed to do the needful in this regard.
7. So for as, case of rest of the applicants is concerned, the record reflects that F.I.R is delayed for five hours, though distance between place of incident and Police station is only about 2 or 3 kilometers. Besides, the parties are already inimical to each other, as is proved from the contents of F.I.R in hands and the F.I.Rs produced by the learned counsel for applicants. It appears that there is long-standing enmity between the parties and the incident of murder from one party has taken place, as such, it is very strange and astonishing that, the persons having murderous enmity with each other can come with open faces before their rivals for committing dacoity of meager valuables. Further, the applicants have already joined the trial and attending the trial Court regularly without misusing the concession of interim bail. Moreover, the sections applied in F.I.R except Section 395 P.P.C. do not come within prohibition as contained in Section 497 Cr.P.C. As for as, section 395 P.P.C is concerned, it carries alternate punishment i.e. imprisonment for life or imprisonment not less than four years and more than ten years and it is well settled principle of law that when the Statute provided different punishment, then the lesser shall be considered, particularly at bail stage. Reference in this regard can be had from the cases reported in 2014 YLR 1723 (Sindh) and 2006 YLR 3167 (Karachi).
8. In case of Shahzore and another v. The State (2006 YLR 3167 (Karachi), it was held as under:
“Under provisions of S. 395, P.P.C alternate punishment i.e. imprisonment for life or imprisonment not less than four years and more than 10 years having been provided, lesser sentence should be considered by the Court in the matter of bail. Accused was admitted to bail, in circumstances”.
9. In view of above circumstances and the dicta laid down in the cases (supra), the application in hands stands allowed to extent of applicants Fahad, Nadir Ali and Saddam. Consequently, interim pre-arrest bail already granted to these applicants vide Order dated 10.05.2023 is hereby confirmed on same terms and conditions. While, as already observed the bail application in respect of applicant Samand stands dismissed for non-prosecution, and surety bond furnished on his behalf is forfeited.
Judge
Ansari