ORDER SHEET.
IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.
Present:
Mr. Justice Shahid Anwar Bajwa &
Mr. Justice Muhammad Ali Mazhar
Cr. Bail Application No. D- 708 of 2011.
Mohammad Ibrahim Tunio.…..…………………………….Applicant.
State…………...………….…….…….………….………..Respondent.
For the Applicant: Mr. Irshad Hussain Dharejo.
For the State: Syed Sardar Ali Shah Rizvi, Assistant Prosecutor General.
Date of hearing: 18th January, 2012.
*******
Muhammad Ali Mazhar J., The applicant has applied post-arrest bail in Crime No. 16 of 2009, Police Station, Abdul Rehman Unnar, district Khairpur, lodged under Sections 365-A, 302, 148, 149 PPC and Section 7 A.T.A.
2. The brief facts are that on 15.6.2009, complainant Khadim Hussain lodged the FIR that on 10.5.2009, he along with his brother Ali Hassan, cousin Abdul Raheem, labour Mohammad Siddique and another cousin Abdul Rehman and Allahdino, went to banana garden for loading Datsun. The headlight of vehicle was switched on and at 9.30 P.M, complainant and other persons saw and identified 15 armed persons and four unidentified persons with Kalashnikovs and G.3 rifles, who can be identified if seen again. Names of 12 persons are mentioned in the FIR with parentage and four unidentified persons without their descriptions. It is further stated in the FIR that all accused persons on the force of weapons kidnapped Ali Hassan, brother of complainant, cousin Abdul Raheem and labour Mohammad Siddique for ransom. The complainant came back to his village and tried to arrange ransom money. The accused demanded 30 lacs and conveyed through mobile phone for the release of abductees. The complainant could not arrange ransom amount due to poverty. On 14.6.2009, SHO, Police Station, Guloo Sial informed the complainant on mobile phone that encounter took place with the group of accused Mubeen Narejo and Murado Narejo with police party in which all three aforesaid abductees have been murdered by firing of the above accused. After receiving this information, complainant reached at Naudero hospital and after postmortem, dead bodies were received. It is further stated that separate case of murder i.e. Crime No. 29 of 2009 under Sections 302,324,353,148,149 PPC has been lodged at Police Station, Keti Mumtaz district Larkana.
3. The learned counsel for the applicant argued that bail application was moved in the trial court but without considering the legal as well as factual aspects, learned trial court dismissed the bail application vide order dated 17.6.2011. He further argued that alleged incident took place on 10.5.2009 while the FIR was lodged on 15.6.2009 with inordinate delay and no reason for such delay has been explained in the FIR. He further argued that in crime No. 29 of 2009, which was lodged on 14.6.2009, name of present applicant is not mentioned. It was further averred that no specific role has been attributed to the present applicant except general allegation against him. He further argued that it is totally an unseen incident, even the complainant has not witnessed the alleged incident. He further pointed out two different bail orders in the same crime number in which accused Allahdino, Piyar Ali and Moharram Ali were granted pre-arrest interim bail which was confirmed by the trial court and even State counsel did not oppose the grant of bail, therefore, learned counsel argued that under the rule of consistency present applicant should have also been allowed concession of bail but in his case learned trial Court without applying rule of consistency dismissed the bail application. He further argued that trial court while dismissing the bail application observed that the present applicant has remained absconder and being fugitive, he is not entitled for the concession of bail. He finally argued that keeping in view facts and circumstances of the case, further inquiry is required to be made in the case of the applicant. In support of his arguments, learned counsel relied as under:
1. 2009 SCMR 299 (Mitho Pitafi v. State). In this case, honorable Supreme Court held that bail can be granted if an accused has good case for bail on merits and mere absconsion would not come in way while granting the bail. Keeping in view this principle, honorable Supreme Court granted bail to the applicant.
2. 2008 SCMR 173 (Muhammad Daud v. State). In this case, honorable Supreme Court held that co-accused in the case has already been admitted to bail. Accused were also allowed bail in view of the rule of consistency in circumstances.
3. 2010 YLR 2108 (Bhutta v. State). In this case bail was allowed on rule of consistency and the learned court held that rule of consistency is always taken into consideration by the courts since long. In case of Muhammad Fazal alias Bodi v. The State (1979 SCMR 9), the Full Bench of the honorable Supreme Court observed that “we think that the petitioner should be released on bail on the principle of requirement of consistency in the same case and for the similar reason that the co-accused to whom a role similar to that of the petitioner was attributed had been so released by another learned Judge of the same High Court”.
4. Conversely, the learned APG for the State argued that delay in lodging FIR is not only sufficient criteria to enlarge the accused on bail. He further argued that the applicant was absconder, therefore, he is not entitled to bail as rightly observed by the learned trial court. He further argued that eyewitnesses fully implicated the applicant in their statements recorded under Section 161 Cr.P.C. So far as the rule of consistency is concerned, the learned APG argued that orders of bail granted by the trial court to three different applicants in the same crime number had different footings, as there is difference between grant of pre-arrest bail and post-arrest bail. All said applicants were granted interim bail, thereafter their bail was confirmed by the trial court but interim bail granted to the present applicant has been recalled. In support of his arguments, he relied upon the following case law:
1. 2011 P.Cr.L.J 966 (Muhammad Yakoob v. State). This judgment was authored by one of us (Shahid Anwar Bajwa J.), in which his Lordship held that delay of 24 hours in lodging of FIR which otherwise was explained could not be fatal to the case of the prosecution. Co-accused who was granted bail, his role was materially different from the role attributed to accused. Absconder could not lose his right of bail by mere fact of absconsion, but absconsion may be circumstances which could be taken into consideration by the court while exercising its discretionary jurisdiction for grant of bail.
2. 1995 SCMR 1765 (Haji Gulu Khan v. Gul Daraz Khan). In this case, the honorable Supreme Court held that case would only fall within the scope of further inquiry under Section 497 Cr.P.C. if the court reaches the conclusion that on the material before it, there are no reasonable grounds to believe that the accused is guilty of a non-bailable offence or an offence punishable with death, imprisonment for life or imprisonment for 10 years. In the absence of a finding to this effect, there will be no occasion for the court to hold that the case is one of further inquiry. Since this was the case of cancellation of bail, therefore, the honorable Supreme Court further went on to hold that tentative opinion expressed by the High Court in bail maters on the merits of the case is not ordinarily disturbed by the Supreme Court.
3. 2009 SCMR 1352 (Allah Bachayo v. State). The principles governing the concession of anticipatory bail are quite different from those which are attributed to the case of post-arrest bail. The petitioners have not been able to make out a case for grant of pre-arrest bail. The discretion exercised by the High Court does not suffer from any legal infirmity so as to warrant interference by this Court.
5. After hearing the pros and cons, it is an admitted position that the alleged incident took place on 10.5.2009 and the complainant lodged the FIR on 15.6.2009. We are mindful to the well settled proposition of law that mere delay in lodging of the FIR is not only sufficient criteria for enlarging the person on bail. However, it is also important aspect that while lodging the FIR with an inordinate delay there must be some explanation in the FIR which lacks in the case in hand. According to complainant incident of kidnapping occurred on 10.5.2009 and the complainant simply mentioned that after incident he was arranging the ransom money but it is not mentioned in the FIR as to why he waited for a long time and did not lodge the FIR. In the FIR, 12 names with parentage are mentioned besides four unidentified accused with KKs. It is also an important fact according to FIR that complainant saw all the accused persons in the headlights of Datsun and incident took place at 9-30 p.m. At this stage it creates doubt as to how the complainant in the nighttime merely with the support of headlights of vehicle not only seen and identified 12 persons and also mentioned their parentage along with kind of weapons and also seen four unidentified persons with K.Ks. There is no specific allegation against the present applicant except that he was present along with 15 others persons with KK. It is also a matter of record that co-accused Moharram was granted interim pre-arrest bail by the trial Court which was confirmed vide order dated 19.5.2010 and the State counsel appearing in that bail application conceded her no objection. The reason for confirming the bail was that no overt act attributed to the applicant Moharram but there were general allegations against him. On the basis of this order, two other accused Allahdino and Piyar Ali, who were implicated subsequently, were also granted bail keeping in view the rule of consistency and again learned State counsel appearing for the State conceded her no objection. According to the prosecution case, on 14.6.2009, another crime No.29 of 2009 was lodged at P.S. Keti Mumtaz, district Larkana by SIP Imam Bux Lashari who contended in the FIR that on 14.6.2009, an encounter took place with notorious dacoits Mubeen Narejo and his group and during encounter accused Akbar and two unidentified accused were killed. Weapons and bullets were recovered from deceased accused. In the same FIR, it is further stated that heavy police force by chasing absconding accused reached in jungle and identified 13 dacoits with surname and two unidentified persons and all said dacoits were armed with K.Ks and three abductees were tied with the trees. He called upon the dacoits to release the abductees and surrender but they made straight fires upon the police force and they took shelter in the jungle. It is further stated in the same FIR that during encounter, accused, namely, Mubeen Narejo and Murado Narejo made straight fires with their weapons upon detenues tied with trees and escaped away taking the benefit of thick jungle. The police identified three deceased abductees as Mohammad Siddique, Abdul Raheem and Ali Hassan. These are the same abductees for which the present complainant had lodged crime No.19 of 2009, in which the present applicant has been nominated as one of the kidnappers. It is also a fact that main allegation for murdering the alleged abductees is against Mubeen Narejo and Murado Narejo who made straight fires on the deceased abductees. Even in this FIR, name of present applicant is not mentioned and it is also not clear whether the present applicant was partner in crime with Mubeen Narejo and Murado Narejo. So far as the absconsion of the applicant is concerned, we are fortified by dictum laid down by the honorable Supreme Court in case of Mitho Pitafi (supra) and besides above, honorable Supreme Court in various cases held that bail can be granted if an accused has good case on merits and mere absconsion would not come in way while granting bail. So far as the case of present applicant is concerned, we are convinced that no overt act has been attributed to the present applicant. The name of applicant has also not been nominated in the crime registered in connection with the encounter of police with the dacoits in which dead bodies of abductees were recovered. So far as the role of the applicant vis-à-vis, charge of abduction is concerned, it is also doubtful at this stage. There is also unexplained delay of 35 days. The complainant has lodged FIR on the next day of registration of crime No.29 of 2009, P.S. Keti Mumtaz, district Larkana in relation to the encounter, in which bodies of abductees were recovered.
6. After hearing the arguments and considering the case law referred to by the learned counsel for the applicant and learned APG, we have reached to a tentative conclusion that case of the applicant would fall within the phrase of further inquiry and there are no reasonable grounds to believe that he is guilty of a non bailable offence or offence punishable with death or life imprisonment. We are fully cognizant that every hypothetical question which may be imagined would not make it a case of further inquiry simply for the reason that it can be answered by the trial court subsequently after evaluation of evidence. Broadly speaking condition laid down in clause (2) of Section 497 Cr.P.C. is that there are sufficient grounds for further inquiry into the guilt which means that question should be such which has nexus with the result of the case and may show or tend to show that accused is not guilty of the offence with which he is charged. (Reference can be made to PLD 1994 SC 65 & 1995 SCMR 1765). It is also well settled proposition that mere absconsion will not be sufficient to dismiss the bail application if the applicant is otherwise entitled to be enlarged on bail on merits of the case. Now, it is also well settled that even at bail stage, the court may extend benefit of doubt to the accused/applicant.
7. The applicant was granted bail by our short order dated 18.1.2012 subject to furnishing solvent surety in the sum of Rs.300,000/- with PR bond in the like amount to the satisfaction of the trial court. Above are the reasons for the same. All the observations made above are tentative in nature and will not prejudice the case of the prosecution.
Dated.24.1.2012 Judge,
Judge