IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Crl. Bail Appln. No. D- 417 of 2011.
Present:
Mr. Justice Shahid Anwar Bajwa.
Mr. Justice Muhammad Ali Mazhar.
Muhammad Murad. …………...Applicant.
Versus
The State. …...…..….Respondent.
Mr. Nawab Syedul Mukhtiar Siddiqui, Advocate for applicant.
Mr. Naimatullah Bhurgri, State counsel.
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Date of hearing: 20.10.2011.
Date of judgment: 20.10.2011.
Muhammad Ali Mazhar, J: The applicant has applied post arrest bail in Crime No. 27/2010, lodged at P.S Golo Daro, District Shikarpur, under section 302, 364, 148, 149, 436, 452 P.P.C; Section 6 of Anti Terrorism Act, and 17 (3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979.
The bail application was moved in the Anti Terrorism Court, Jacobabad, but vide order dated 25th May, 2011, the same was dismissed.
The learned counsel for the applicant argued that the name of the applicant is not mentioned in the F.I.R, but he has been nominated by way of supplementary statement recorded under section 161 Cr.P.C. He further argued that there is at-least two days delay in the F.I.R without any plausible explanation. The investigating officer in the case has recorded the statements under section 161 Cr.P.C after lapse of considerable time. He lastly contended that the case of present applicant clearly falls within the phrase of further enquiry as envisaged under subsection (2) of section 497 Cr.P.C, therefore, the applicant is entitled to be released on bail. In support of his arguments, the learned counsel for the applicant relied upon 2011 S.C.M.R 161 (Abid Ali V. The State); in which the Hon’ble Supreme Court has held that bail cannot be withheld as punishment and it was further held that even for the purposes of bail law is not to be stretched in favor of the prosecution. The Hon’ble Supreme Court further went on to hold that the name of petitioner is not mentioned in the F.I.R but his name was included in the list of accused in the supplementary statement. There is no explanation available in this regard, therefore, the case of petitioner falls under the category of further enquiry. It was further held that although the challan has been submitted in the Court and the case was fixed for hearing but still prima facie the case of the petitioner appears to be one of further enquiry and is covered under the provisions of section 497 Cr.P.C, that he be released on bail and practice of refusal of bail in such cases, where challan is submitted should not be bar to refusal.
On the contrary, the learned State counsel argued that at-least forty empties of different kind were recovered from the place of incident. However, he conceded to that neither any recovery was affected from the present applicant nor his name is appearing in the F.I.R but he was implicated by way of supplementary statement.
After hearing the arguments of the learned counsel, we have reached to the conclusion that the name of the applicant is not mentioned in the F.I.R and after lapse of at-least six months, he was implicated by way of supplementary statement recorded under section 161 Cr.P.C, which creates reasonable doubt and possibility of false involvement of the applicant cannot be ruled out, therefore, the case requires further enquiry. The learned State counsel further conceded that in the statement recorded under section 161 Cr.P.C no plausible explanation has been offered as to why the applicant was not initially nominated in the F.I.R and what are the reasons to implicate him after a long time in statement. We are fortified by the dictum laid down by the Hon’ble Supreme Court (supra) that bail cannot be withheld as punishment and even at the bail stage law is not to be stretched in favor of the prosecution. In the similar circumstances, the Hon’ble Supreme Court granted bail and we are also of the view that this is a case of further enquiry, therefore, the applicant is granted bail subject to furnishing solvent surety in the sum of Rs.300,000/- (Three hundred thousands) and P.R bond in the like amount to the satisfaction of the trial Court.
Judge
Judge