ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD

Cr. Bail Appl. No.S-583 of  2010.

DATE                                     ORDER WITH SIGNATURE OF JUDGE

1. For orders on MA 2729/2010.

2. For hearing.

22.09.2010

Mrs. Shabana Kausar Jatoi Advocate for the applicant.

Mr. Mr. Shahid A. Shaikh, A.P.G.

                                                =

1.         Granted subject to all just exceptions.

2.         Applicant seeks post arrest bail in crime No.44/2009 of P.S. Shahpur for offence u/s 17(2) Offence against property (Enforcement of Hudood) Ordinance, 1979.

The applicant approached the trial court but his bail plea was turned down vide order dated 29.04.2010.

The contents of prosecution case in nutshell are that on 14.09.2009 complainant Khamiso lodged the report with P.S. Shahpur stating therein that he is farmer on the lands of Muhammad Khan having land on lease in Deh Soomar. On 13.09.2009 at 09.00 p.m. he alongwith his brother Kareem Bux and son of his zamindar namely Ahmed Khan Soomro on motorcycle went to give meal to the chowkidars at the land. The complainant took his repeater with him for self defence when they reached near the garden of barriers of Ghulam Hussain Hajano, they saw four persons standing on road armed with weapons. They were Haji Ali Akber armed with pistol, Sikander alias Sikoo with 12 bore pistol, Malhar alias Bilawal with pistol, Himat Magsi with pistol. They signaled them to stop, however, they dismounted for their motorcycle, the person having pistol in his hand opened fire upon Ahmed Khan Soomro, which hit on his chest. The complainant also made firing with his repeater in result, the accused Haji Ali Akber sustained injuries and other escaped away. On the noise of firing, people gathered theree and police also came there and after taking injured Ahmed Khan and dead body of Haji Ali Akber Magsi and after necessary action , they alongwith police searched for foot prints which after reaching Shahpur road disappeared. The complainant then came at police station and lodged F.I.R.

It is inter alia contended that applicant is innocent and has nothing to do with the alleged offence; the prosecution story does not attract prudent mind and against normal human conduct; that no specific role is assigned to the applicant; neither any specific allegation is leveled against the applicant; no recovery has been affected from the applicant; no empty cartridge/shell has been secured from the place of occurrence, which negates the prosecution version; the F.I.R. is belated by 19 hours without any plausible explanation; that the applicant is behind the bars since 24.10.2009.

Conversely, learned Assistant Prosecutor General Sindh for the half heartedly opposes the bail plea of the applicant but did not controvert the contentions raised by the learned counsel for the applicant.

Heard learned counsel for the parties and perused the record.

This incident is said to have been taken place on 13.09.2009 at 2130 hours, whereas the F.I.R. was lodged on 14.09.2009 at 1600 hours, without any explanation what to say about plausible explanation. Admittedly from the place of occurrence, the I.O. did not collect any empty shell or cartridge though per complainant there was exchange of firing between him and culprits. The applicant was arrested on 24.10.2009 but no recovery of incriminating article has been made from present applicant/accused. Admittedly the applicant is behind the bars since 24.09.2009 without any progress in the trial. Besides this, the offence for which the applicant has been booked does not fall within prohibitory clause of section 497(1) Cr.P.C and in likewise case basic rule is bail and not jail. The case of the applicant does not fall within exceptions as laid down by their lordships in Tariq Bashir’s case reported in PLD 1995 S.C 34. Apart from that, 161 Cr.P.C statements of the witnesses were recorded on 21.09.2009 after 18 days of the occurrence, such aspect of the case was not considered by the trial court while refusing bail to the applicant.

For the foregoing reasons, I am of the considered view that the case of the applicant requires further probe as there are no reasonable grounds to believe that the applicant is guilty of the offence punishable with death, imprisonment for life  or for 10 years, consequently I allow this bail application and admit the applicant on bail subject to furnishing solvent surety in the sum of Rs.100,000/- and P.R bond in the like amount to the satisfaction of the trial court.

The Cr. Bail Application stands disposed of.

                                                                                                JUDGE

A.K