ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Bail Appln. No. S- 162 of 2012.

Order with signature of Judge

Date of hearing:   15.08.2012.

Date of decision:   15.08.2012.

          Mr. Rafique Ahmed Abro, Advocate for applicant.

          Mr. Kashif Noor Khan Pathan, Advocate for complainant.

          Mr. Muhammad Bux Qazi, State counsel.

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Salahuddin Panhwar, J:         Applicant Dawan Ali alias Dawoo Khuhawar has moved an application under Section 497 Cr.P.C, in Crime No.29/2011 of P.S Gaji Khuhawar, under Section 17 (4) Offences Against Property (Enforcement of Hudood), Ordinance, 1979.

2.       Relevant facts of the case are that on 29.5.2011, the complainant Raja and his father Ameer Ali alias Meeral were on the way to their village Abbas Ali Laar, while PWs: Muhammad Aslam and Peeral were also following them on another motorcycle. At about 6.30 a.m. when they reached link road leading to village Abbas Ali Laar they were waylaid by three unknown culprits, who were with open faces, out of them one had pistol in his hand while two were having guns; they signaled  them to stop, as such they stopped and got down from the motorcycle. The culprits robbed their motorcycle by force and on resistance, one of the culprits made straight fire from pistol at complainant’s father, which hit on his head. Meanwhile PWs Mohammad Aslam and Peeral also reached, who had also seen the culprits. The accused persons then made their escape good alongwith robbed motorcycle. The injured was being removed to the hospital for first aid, but he succumbed to his injuries on the way to hospital.

3.       After registration of the F.I.R, the applicant was arrested and challaned in the Court of law.

4.       Counsel for the applicant, inter-alia, contended that F.I.R is delayed for about four hours, for which no plausible explanation has been furnished; that F.I.R was lodged on 29.5.2011, no name of any accused was mentioned in the F.I.R, but on 30.5.2011, in the statements of 161 Cr.P.C the prosecution witnesses Muhammad Aslam and Peeral have named four accused persons including the applicant with the allegation that applicant was armed with gun; in prosecution case main allegation is against accused Munir, who was allegedly armed with pistol and caused fatal injury to the deceased; no identification parade was held; co-accused Ameer Ali who was named in statements under section 161 Cr.P.C and in his presence 164 Cr.P.C statements of PWs were recorded, has been let off by the police, therefore, this is case of further enquiry. In support of his contentions the learned counsel relied upon case of Shadoo v. the State (2009 YLR 572), Nadeem Burney v. The State (1999 MLD 1259), Mithal v. The State (2005 P.Cr.L.J 630) and Bago v. The State (2011 MLD 685).

5.       Conversely, counsel for the complainant has argued that this is case of robbery and murder; applicant is involved in heinous offence; applicant has facilitated principal accused Munir Ahmed who caused fatal shot to the deceased; gun was recovered from his possession; prosecution witnesses have specifically involved applicant. Learned counsel relied on the case of Saqib Jilani v. The State and another (2000 S.D 287).

6.       Learned State counsel has argued that prosecution witnesses have fully supported prosecution case; this is day time incident; property is yet to be recovered and it is crime against society.    

7.       Heard learned counsel for respective parties and perused the record.

8.       I have examined the case law relied by leaned counsel for respective parties. In case of Shadoo v. The State (supra), it is held that:-

          “Admitted position of the case is that neither the name of applicant/accused find place in the F.I.R, nor after his arrest any identification parade of this accused was held to identify him as a culprit of this case. The applicant/ accused at this stage is not required by the police for further investigation and furthermore three nominated accused have been released by the police under section 169, read with sections 496 and 497 Cr.P.C and the challan against them has been accepted by the concerned Magistrate.”

          “In the case of Nadeem Burney v. The State (supra), the bail was granted to the accused, when no particular role had been assigned to accused in the occurrence; allegations of general types had been made in the F.I.R; and no identification parade was held in the case.”

          “In the case of Bago v. The State (supra), it was held that, it is settled law that at the bail stage deeper appreciation of the evidence cannot be gone into but only it is to be seen as to whether the present applicant/accused is prima facie connected with commission of the alleged offence or not. In the present case it is an admitted position that the name of the applicant does not appear in the F.I.R. It is also factually correct that the description of any of the accused persons is not available in the F.I.R. it is also an admitted position that no identification parade as required under the law was conducted by the police and there is unexplained delay in lodging of F.I.R. Since there is delay in lodging of the F.I.R and it appears that prosecution has tried to improve the case after the arrest of present applicant through further statement recorded on 17.4.2010, the case of the prosecution has become doubtful which requires further enquiry into the matter.”

          “In the case of Mithal v. The State (supra), it was held that, additionally it would be seen that the present accused did not participate in the crime of murder at all and in these circumstances against his liability on the theory of common intention would be question of further inquiry which would be only established at the trial.”

9.       According to F.I.R, three accused persons armed with weapons waylaid the complainant and his father, robbed them of their motorcycle and on resistance caused murder of Ameer Ali alias Meeral, the father of complainant; no name of the accused was given in the F.I.R by the complainant, but two persons Muhammad Aslam and Peeral both eyewitnesses were available at the time of incident have disclosed name of all accused persons in their 161 Cr.P.C statements on 30.05.2011. It is pertinent to mention here that F.I.R shows three accused persons, whereas prosecution witnesses disclosed names of four accused persons alongwith parentage and addressed. Moreover, the name of accused, Ameer Ali, disclosed in 161 Cr.P.C statements, his case is at par with the case of present applicant who was arrested and subsequently released under section 169 Cr.P.C. Regarding the contention of learned counsel for applicant that F.I.R is delayed for about four hours, per se delay of F.I.R is no ground for bail but other evidence collected by the prosecution makes case of  applicant as one of further enquiry, as on the same allegation one accused Ameer Ali was released by the police. It is also pertinent to mention that PWs who were accompanying with complainant have not disclosed the source of information that within short time on second day how they came to know the names of accused persons with their parentage and addresses, if, they were acquainted with the accused persons, this aspect is more strange that why the names of accused persons were not disclosed at the time of lodgment of the F.I.R especially when both the witnesses are uncles of the complainant. Regarding to contention of complainant counsel and State counsel that this is a heinous case and offence is against society, no doubt in heinous cases and offences against society Courts must not exercise discretionary powers in routine, in favour of accused but merely allegations of heinous case are not sufficient to deny the accused from his right of liberty, prosecution is duty bound to bring the case of accused within the parameters of prohibitory clause of Section 497 (1) Cr.P.C as it is settled law that bail cannot be withheld as punishment.

10.     Keeping in view of above circumstances and the ratio of case law referred above, applicant has succeeded to make out his case, falling within ambit of further inquiry, thus applicant is entitled for bail after arrest. However, the prosecution is at liberty that, if, during trial more substance comes on record through evidence, they can move cancellation of bail and the trial Court will be competent to decide that, without being influenced by tentative observations of this Court.

11.     These are the reasons for my short order dated 15.08.2012, whereby the applicant was granted bail subject to his furnishing solvent surety in the sum of Rs.500,000/- for satisfaction of trial Court.

                                                                Judge