ORDER SHEET
IN THE HIGH COURT OF SINDH,
CIRCUIT COURT, HYDERABAD.
Cr. Bail Appl. No.469 of 2010
DATE ORDER WITH SIGNATURE OF JUDGE
07.10.2010.
Mr. Salahuddin Panhwar Advocate for the applicant.
Mr. Shahid Ahmed Shaikh Assistant Prosecutor General Sindh.
Rana Sohail Ahmed Advocate for the complainant.
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Ahmed Ali M. Shaikh J. Applicant Reejho seeks post arrest bail in crime No.72/2010 of Police Station Umerkot for offence punishable u/s 457, 380, 411, 337 H(ii), 504, 403, 337 A(i), F(i), L(ii), U(i), 365, 34 & 35 PPC.
2. The applicant approached the trial Court but his bail application was dismissed vide order dated 24.06.2010.
3. On 26.05.2010 at 0130 hours, complainant Zulfiqar Ali Arain lodged report with P.S. Umerkot, which reads as under:-
“Complaint is that I reside at the above shown address and I have Iron shop at Akaro Road Umerkot City which I myself use to run. Today as per routine in the evening at about 8.00 p.m. closed shop, came to house, took meal. I, my brother Ramzan maternal nephew Kashif Ali son of Sadik Ali Arain, Muhammad Saeed son of late Nazeer Ahmed, collectively proceeded towards the shop for care of articles of shop, at about 9.45 p.m. we reached at my shop, saw that infront of my shop a donkey cart was parked in which namely Reejho son of Not known Oad and his son each Malook Oad, Chetan Oad and Shoukeen oad were stealing iron rods from my shop and loading in the donkey cart, on seeing us while coming, all accused left donkey cart with iron and escaped away. We saw that lock of my shop was broken and from the shop iron rods were stolen. We left Muhammad Saeed with Donkey cart and shop, followed the accused, reached near the house of accused Rejho Oad, called Rejho Oad, meanwhile all four accused persons duly armed with weapons came out from the house, started aerial firing. We came back, meanwhile all the accused forcibly caught hold of my maternal nephew Kashif Ali, kidnapped him took away inside the house, started beating and then concealed the kashif. I immediately inform to 15 Police, Police Station Umerkot and my rel5atives on 15 Motorcycle reached there, I informed them facts, then SHO knocked the door of Rejho Oad, informed him about the police, before us the accused scaled wall of the house and escaped away while taking benefit of darkness. I and police came inside the house, saw that Kashif was tied with chain having severe injuries on his face and body to whom we got released, shifted him to Government Hospital, where Kashif told that in his pocket cash Rs.80,000/- and Nokia Mobile phone which has been fell down there, thereafter Kashif was admitted in the Hospital, then alongwith donkey cart and iron rod produced at police station, lodged report that the above named accused with their common intention have broken the lock of my shop stolen below detailed iron rods loaded in the donkey cart, on our arrival left the iron and donkey cart and escaped away. We followed them then they made aerial firing, kidnapped my nephew Kashif Ali, concealed him, beaten him, tied with chain, on arrival of police, accused escaped away. My nephew Kashif left in the Hospital for treatment. I appeared at Police Station and lodge the report that investigation be done and letter for treatment be issued”.
4. It is inter alia contended by the learned counsel for the applicant that the applicant is innocent and he alongwith his three sons has been implicated in a false case; applicant is poor labour and earns his livelihood by a donkey cart; he was loading luggage from the iron shop of the complainant and due to dispute over outstanding fare amount, he has been implicated in this case. Per learned counsel the entire prosecution story is nothing but brain child of the complainant and does not attract prudent mind; a counter case in respect of same occurrence was registered by Shirimati Tejan wife of the applicant against the complainant and others bearing Crime No.109/2010 P.S. Umerkot for offence u/s 324, 504(2), 457, 147,148,149,337 A(i), F(i) PPC on the orders of this Court. It is lastly contended that the offence does not fall within the prohibitory clause of section 497)i) Cr.P.C.
5. On the other hand, learned Assistant Prosecutor General Sindh assisted by Rana Sohail Ahmed counsel for the complainant opposed the bail application and contended that the name of the applicant finds place in the FIR and there is recovery of stolen property from his possession, therefore, he does not deserve the concession of bail.
6. Heard learned counsel for the parties and perused the record.
7. Per prosecution, this incident had taken place on 25.05.2010 at 2145 hours, whereas the FIR was lodged on 26.05.2010 at 0130 hours though the police station was situated at the distance of about two furlongs. The alleged offence does not fall within prohibitory clause of section 497(i) Cr.P.C and in likewise cases, basic rule is bail and refusal is an exception as held by their lordships in Tarique Bashir’s case (PLD 1995 SC 34). There are also counter cases arising out of same occurrence. It is settled principle of law that in case of counter version arising from same occurrence, one given by the complainant in the FIR and other given by opposite party, in such cases normally bail is granted on the ground of further inquiry for the reason that question as to which version is correct is to be decided by the trial Court, which is supposed to record the evidence and also apprise the same in order to give a final conclusion in this regard as held in case of Shoib Mehmood Buitt Vs. Iftikhar ul Haq and 3 others reported in 1996 SCMR 1845. Case is pending trial before the Magistrate and in such event sentence of more than three years cannot be visualized as held in case of Manzoor Ali @ Mumtaz Vs. The State 2001 P Cr. L J 344.
8. For the foregoing reasons, I am of the considered view that the applicant has succeeded to make out a case for bail. Consequently he was admitted to bail by short order dated 06.10.2010 for above reasons.
The Cr. Bail application stands disposed of.
JUDGE
A.K