ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD

Cr.B.A.No.S- 471 of 2010

DATE                                     ORDER WITH SIGNATURE OF JUDGE

            1. For orders on MA 2160/10.

            2. For hearing.

Date of hearing:         19.10.2010.

Date of order:

Mr. Ayaz Ali Gopang, Advocate for applicants.

Mr. Shahid Ahmed Shaikh, A.P.G for the State.

Mr. Inam Malik, Advocate for complainant.

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By this order, I intend to dispose of Criminal Bail Application No.S-471 of 2010 filed by the applicants whereby they seek post arrest bail in Crime No.26 of 2009 of Police Station Jamshoro for offence U/s 364 PPC.

The applicants have been denied the bail by the trial Court vide order dated 16.6.2010.

Facts of the prosecution as disclosed in the FIR lodged by complainant Muhammad Ramzan Sabki on 23.12.2009 are reproduced as under:-

“Report is that I reside on the above address and doing tailoring work and every month I used to come to Thana Bola Khan at Syed Baqar Shah. On 06.12.2009 I alongwith my son Saddam Hussain aged about 15/16 years and maternal cousin Imam Bux son of Murad and nephew Haji Hassan son of Gul Hassan Sabki both residents of Dewan Jo Kario near Moro had come on the Dargah of Syed Baqar Shah in a datsun and after Ziarat we were coming back for the transport on the road when at 1500 hours we were approaching the road leading from Mando Khan Palari to Thana Bola Khan, we saw that two cars out of which one was of white colour and the other one was of white colour and the other one was of black colour 2-D were coming on the road from Makki Petroleum Service alongwith one Motor Cycle on which there were two persons riding, who stopped us. We saw that four persons from each car came out. Out of whom the face of one person was opened having KK in his hand while the faces of other persons were muffled having pistols in their hands. The person with opened face disclosed his name to be Allah Bux Hote and by saying so the said person forcibly captured my son Saddam and made him to sit in a car. We raised cries. In the meanwhile the other accused raised their weapons upon us and asked to remain silent and not come near them and due to fear of weapons we remained silent. The accused then went away by abducting my son. I then moved such application to the higher officers and to the Sessions Judge, Jamshoro at Kotri. Then I and my above witnesses kept on searching for the accused having muffled faces, one of them might be Feroze alias Peroze son of Beero Khan Hote aged about 30/35 years r/o Village Mureed Khan Zardari, District Nawabshah who is suspected and the person who disclosed his name to be Allah Bux Hote was Sono son of Muhammad Ali Hote, resident of Nawabshah Town aged about 45 years who all with common object have abducted my son Saddam Hussain with intention to kill him. I then produced the order issued by the Court of Sessions Judge Jamshoro at Kotri Order No. Nil dated 22.12.2009 and give details and investigation be made.”

            It is inter alia contended that applicants are innocent and have been falsely implicated by the complainant in order to settle down their matrimonial disputes; the FIR is belated by 16 days without plausible explanation which is a result of consultation and deliberation hence the false implication of the applicants cannot be ruled out; Mst. Sasui alias Sajida, the grand daughter of the complainant is married to Sikandar Sabki Hote who is cousin of the applicant Sono and in exchange applicant Sono has given the hand of his daughter to the complainant party and due to such matrimonial differences a false case has been registered with sole object to create maximum pressure upon the applicants; the name of applicant Muhammad Azeem does not appear in the FIR and there is no material on record to show any nexus of the applicants with the alleged offence; the applicant Sono is serving as O.G Warder in District Jail Shaheed Benazirabad and on the day of incident he was on duty from 2-00 P.M to 6-00 P.M whereas applicant Muhammad Azeem is working as Chowkedar in Food Department and on the day of incident he was also on his duty from 8-00 P.M to 6-00 A.M; during course of the investigation, the I.O has recommended the case for disposal under ‘C’ Class; 164 Cr.P.C statement of abductee contradicts the version of the complainant put forth in the FIR; 161 Cr.P.C statements of PWs have been recorded on 30.1.2010 though the alleged incident had taken place on 6.12.2009; one of the PWs namely Imam Bux Hote who is cousin of the complainant has filed his affidavit in which he has categorically stated that at the time of incident neither he was with complainant nor seen the alleged incident nor Saddam Hussain was abducted by the accused in his presence; per learned counsel in view of such statement, the case of applicants require further inquiry.

            Conversely, Mr. Shahid Ahmed Shaikh, learned A.P.G for the State very frankly conceded the bail plea of applicants Feroze alias Peroze and Muhammad Azeem, however he opposed the bail plea of applicant Sono.

            Mr. Inam Malik, learned counsel for the complainant opposed the bail plea of the applicants on the ground that they are charged for a heinous offence and a sufficient material is available connecting them with the above offence.

            Heard and perused the record.

            Upon perusal of the FIR it appears that alleged incident had taken place on 6.12.2009 whereas the FIR was lodged on 23.12.2009 and no explanation has been furnished by the prosecution for such delay. Even the FIR was lodged on the orders passed by Sessions Judge Jamshoro at Kotri but complainant has not sated whether he approached the police for report or the concerned police officer refused to lodge the report. Admittedly, the name of applicant Azeem does not find place in the FIR however the complainant has alleged that applicant Feroze may be one of the culprits whereas one of the accused who at the time of alleged incident disclosed his name as Allah Bux was stated to be Sono. In the FIR the date of alleged incident has been shown as 6.12.2009 whereas abductee Saddam Hussain in his 164 Cr.P.C statement which was recorded on 25.1.2010 has stated that about two months ago the present incident had taken place. In other words, the abductee contradicts the version of the complainant with regard to the date of incident. Upon perusal of 164 Cr.P.C statement of abductee Saddam Hussain, it appears that accused were calling to each other with their names as Feroze, Azeem, Sono and Soomar, which further reveals that he remained with them for four days and thereafter, finding an opportunity he ran away from their clutches and subsequently joined his father. However, till 23.12.2009 when complainant appeared at Police Station and lodged the report, he concealed such fact and did not inform the police that his son Saddam Hussain has been returned back. Abductee Saddam Hussain in his U/s 164 Cr.P.C statement has categorically stated he remained with his abductors for four days and then made his escape good but till lodging the FIR, the complainant concealed such fact and did not disclose the same to the police. However, on 25.1.2010, the abductee was produced before the Magistrate when his 164 Cr.P.C statement was recorded. It is very strange that culprits who allegedly abducted the son of complainant disclosed their real names to the abductee which is against the normal human conduct. Moreover, no identification parade was arranged for identification of the accused. Admittedly, the FIR is lodged with delay of about 17 days without any explanation, what to say about plausible explanation. Abductee Saddam through his 164 Cr.P.C statement contradicts the version of the complainant with regard to the date of incident and belated 161 Cr.P.C statements of PWs do not carry any weight.

            For the foregoing reasons, I am of the considered view that case of applicants requires further inquiry as there are no reasonable grounds to believe that they have committed the alleged offence as the prosecution could not collect sufficient material to show their nexus with the alleged incident. Even it is settled principle of law that benefit of doubt even at the bail stage, must be extended to the accused as held by Honourable Supreme Court in the case of Ameer Vs. The State, reported in PLD 1972 Supreme Court 277. Consequently, bail application is allowed and the applicants are directed to be released on bail subject to their furnishing solvent surety in the sum of Rs.100,000/- (One lac) each and P.R Bonds in the like amount to the satisfaction of the trial Court.

            Needless to say that observations made hereinabove are tentative in nature and would not influence the trial Court in any manner while disposing of the case finally.     

JUDGE

Tufail