ORDER SHEET
IN THE HIGH COURT OF SINDH, BENCH AT
SUKKUR.
Crl. Bail Appln. No.D-761 of 2011
|
DATE OF
HEARING |
ORDER
WITH SIGNATURE OF HONBLE JUDGE |
23.10.2012.
For Hearing.
Mr.
Zulfiqar Ali Naich, advocate for the applicant.
Mr. Zulfiqar
Ali Jatoi, D.P.G.
--------------------------
NAIMATULLAH PHULPOTO,J- Applicant/accused
Asghar Ali alias Ghoro seeks bail in crime No.62/2009, registered against
accused at Police Station Padeidan, under Sections 365-A, 215, 34, PPC.
Brief
facts of the prosecution case as disclosed in the F.I.R are that on 28.5.2009
Kamran Afzal lodged F.I.R alleging therein that on 23.4.2009 he alongwith his
father Muhammad Afzal and Khalil Ahmed son of Muhammad Ramzan, after offering
Fajar prayer went for morning walk. At
0700 hours they reached near Fardo, deh Padeidan, where they saw a car and a
motorcycle CD-70 appearing from Bhiria road side and stopped near them. Complainant party saw six accused persons with
open faces, who were armed with deadly weapons.
They were identified to be 1) Abdul Khaliq alias Khakoo Rajpar, 2) Asghar
Ali alias Ghoro Phulpoto (the applicant), both armed with Kalashnikovs, 3) Akbar
alias Bhooro Kalhoro, armed with Repeater, 4) Mukhtiar alias Phatpal Rind, armed
with Kalashnikov, 5) Barkat Ali alias Barkoo Kalhoro, armed with G-3 Rifle, and
6) Sulleman Chandio, armed with Kalashnikov.
All the accused persons challenged to the complainant party and asked them
to keep quiet. After that by show of weapons
the accused persons kidnapped Muhammad Afzal, father of complainant and further
asked the complainant to make arrangement for the ransom of Rs.20,00,000/-
(twenty lacs) for the release of abductee.
It is also mentioned in the F.I.R that the complainant party started
search of abductee, during which one Ghulam Qadir Rind, the relative of accused
Mukhtiar Rind and one Abdul Hafeez Kalhoro met the complainant and offered that
they would get the abductee released from the captivity of accused on payment
of ransom of Rs.20,00,000/-, but the complainant expressed inability to arrange
such huge amount. Thereafter, the
complainant went to police station and lodged F.I.R. against the accused under
the above referred sections.
Mr.
Zulfiqar Ali Naich, learned advocate for the applicant/accused contended that
F.I.R was lodged with inordinate delay, for which no plausible explanation has
been furnished. He further contended
that co-accused Ali Akbar, Mukhtiar, Rasool alias Abdul Hafeez and Ghulam Qadir
have already been acquitted by the learned Judge, Anti-Terrorism Court,
Khairpur under Section 265-K, Cr.P.C. It
is also contended that co-accused Liaquat has been granted bail by the trial
Court and case of applicant/accused is identical and requires further enquiry.
Mr.
Zulfiqar Ali Jatoi, D.P.G., appearing on behalf of the State, strongly opposed
the application. He has argued that
delay in lodging of the F.I.R has been fully explained. Learned trial Court acquitted co-accused
under Section 265-K, Cr.P.C in a hasty manner without considering the
prosecution material collected during investigation in this case. Mr. Jatoi argued that simply it is mentioned
in the bail application that co-accused Liaquat has been granted bail by the
trial Court, but copy of such order has not been placed on record. He has also argued that there is sufficient
material available on record against applicant/accused to connect him in the
commission of the offence. Rule of consistency
would not be attracted in this case. In
support of his contentions he has relied upon the case of Akram alias Akroo v. The State, 2012 P.Cr.L.J 1132.
We
have carefully heard the learned Counsel for the parties, perused the contents
of the F.I.R, 161 Cr.P.C statements of the P.Ws and other material collected by
the prosecution during investigation, so also order passed by the learned
Anti-Terrorism Court, Khairpur under Section 265-K, Cr.P.C.
Applicant
Asghar alias Goro has been fully implicated by the complainant in his F.I.R. P.W Khalil Ahmed and abductee Muhammad Afzal
have also implicated applicant/accused in their 161, Cr.P.C statements. Record further shows that the abductee was
recovered from the possession of applicant Asghar alias Goro and others on
28.5.2009 and an unlicensed Kalashnikov was also recovered from the
applicant. Under Section 365-A, PPC, every
member of a gang who kidnaps a person for ransom is equally and vicariously liable
to the alleged offence. Learned Judge,
From very carefully scanning of the
record it reveals that the F.I.R of the present incident was not lodged on the
very day of incident by the complainant but the same was recorded with delay of
more than one month and five days for which no plausible explanation has been
furnished by the complainant. It is an
admitted fact that there is enmity in between both the accused and police
officials belonging to district N/Feroze and the applicant Ghulam Qadir had
filed constitutional petition before the Honourable High Court of Sindh Bench
at Sukkur so also criminal miscellaneous application under Section 22-A &
22-B Cr.P.C before the learned Sessions Judge/Justice of Pece, Naushero feroze
prior to this incident as referred to above and the higher authorities of
police after examining the parties declared that the F.I.R in respect of
recovery of abductee was false which need to be disposed of under false B-Class
and the police officers involved in the matter be dealt with departmental
action. Therefore, in the peculiar
circumstances, I find that the case against both the applicants/accused is not
free from doubt, therefore, in such situation there is no probability of the
accused being convicted of any offence if the case proceeded against them and
if the case further proceeded, the precious time of this court will be wasted
and it will be futile trial against both of them. Accused had a legal right to file application
for their acquittal at any stage.
Reliance is placed on the authority reported in 2004 SCMR 1805.
The crux of above said position and in
view of reasons discussed supra coupled with no objection recorded by the
learned SPP appearing on behalf of the State, I have come to the conclusion
that both the accused have been falsely involved and implicated by the police
in this case due to admitted enmity at the instance of complainant party,
therefore, at this stage, I have no option but to acquit both the present
accused Ghulam Qadir and Abdul Rasool alias Abdul Hafeez under section 265-K,
Cr.P.C. They are present on bail and
their bail bond stand cancelled and sureties discharged. The application under Section 265-K, Cr.P.C
is accordingly allowed. Let the case
against the remaining accused be proceeded in accordance with law.
Acquittal
of the co-accused under Section 265-K, Cr.P.C would not be sufficient to make
the applicant/accused entitled for concession of bail on that ground
alone. Perhaps, the learned trial Judge
was not properly assisted while he acquitted the co-accused under Section
265-K, Cr.P.C. It is the settled
position of law that Court cannot deprive prosecution of opportunity to produce
evidence under the garb of Section 265-K, Cr.P.C. Power under this section can only be invoked
in the cases wherein no probability of convicting the accused exists. In this case, without examination of the
prosecution witnesses acquittal under Section
265-K, Cr.P.C was recorded by learned trial Judge. Certainly its benefit shall not be extended
to the present accused. There is huge
material available on record against applicant/accused to prima facie connect
him in the commission of the offence.
Delay per se in lodging F.I.R is
also no ground for grant of bail to the accused. Moreover, delay has also been explained. Enmity is also double-edged weapon. It is the matter of record that the copy of the
order granting bail to co-accused Liaquat is not annexed with bail application,
hence such ground is not available to the learned defence Counsel, therefore, learned
advocate for applicant/accused cannot claim grant of bail on the rule of
consistency. This Court more or less in
the identical circumstances in the above-mentioned case of Akram alias Akroo has observed as under :-
5. As
far as contention of the learned counsel that there is two months delay in
lodging of the F.I.R is concerned, suffice it to observe that it is now
well-settled law that in the cases of abduction or kidnapping for ransom
invariably the families are held in terror and they always try as long as hope
remains alive, to get the alleged abductee released and are therefore quite
reluctant to go to police because they fear for life of the alleged
abductee. Therefore delay is a natural
phenomenon.
6.
..
7.
8.
9. Learned Counsel argued that co-accused
Akbar has been acquitted and co-accused Ghulam Nabi has been granted bail by
the court below. Both the orders of
acquittal as well as order granting bail are annexed with the application and
both these indicate that question regarding statement under section 164, Cr.P.C
was not pointed out to the Court and moreover both the judgments are based on
no opposition by the prosecution. We are
indeed surprised that even in presence of statement under section 164, Cr.P.C.
the prosecutors chose firstly not to refer to that statement and secondly gave
their no objection. Therefore, the
principle of consistency cannot be attracted in the circumstances. Moreover, consistency is always attracted
when there are judgments of the Courts of equal stature. If a judgment or an order is of a Court of
lower stature it cannot bind the court of higher stature and if judgment/order
is by a Court of higher stature in the same hierarchy, if not only has persuasive
value but is rather binding.
In
the present case, complainant and alleged abductee have implicated
applicant/accused in the commission of the offence. Prima facie, there is sufficient material to
connect the applicant/accused with the alleged offence. Acquittal of co-accused, namely, Ali Akbar,
Mukhtiar, Rasool alias Abdul Hafeez and Ghulam Qadir under Section 265-K,
Cr.P.C would not be valid ground for applicant/accused for grant of bail on the
rule of consistency, in the above-stated circumstances. Yet prosecution witnesses have not been
examined. Prima facie, there are
reasonable grounds to believe that applicant/accused is involved in the abduction
for ransom, we find no substance in the arguments of learned defence
Counsel. Resultantly, criminal bail
application is dismissed with direction to the trial Court to decide the case
expeditiously.
Needless to observe that the above
observations are tentative in nature and the trial Court shall not be
influenced, in any manner, while deciding the case.
JUDGE
JUDGE
Tahir/*