ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, HYDERABAD

CR. B.A.NO.S-729 OF 2012

DATE                         ORDER WITH SIGNATURE OF JUDGE

22.10.2012.

            Mr. Muhammad Akram Rajput Advocate for applicant.

            Mr. Shahzado Saleem, A.P.G. for the State.

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SALAHUDDIN PANHWAR,J-        Applicants Shahnawaz and Lohano seek post arrest bail in crime No.185/2011 of P.S. Hala for offence u/s 392 of PPC.

2.         Facts, leading to instant application are that on 24.12.2011, complainant along with his brother Gul Bahar,  on motorcycle, were going towards their village. At 10.00 p.m when they reached on link road of village Latakdino Fakir, they were waylaid by applicants/accused and one unknown person. Both applicants were armed with pistols, their faces were opened; applicant/ accused Lahano robbed cash of Rs.2000/-mobile phone and accused Shahnawaz Malookhani robbed Rs.800/- and mobile phone from Gul Bahar; unknown person caused lathi blow to the complainant. Thereafter all three accused persons  on motorcycle of complainant, escaped away; FIR was lodged after two days on 26.12.2011; applicants were arrested on 29.12.2011 and recovery was effected on 10.01.2012.

3.         Learned counsel for the applicants has inter alia contended that the applicants have been booked in this case due to dispute on agricultural land as complainant Akber is by caste Malookhani and applicants are also by caste Malookhani ,residing in same village, therefore, it is not believable that applicants with open faces committed robbery from their own caste fellow villagers; recovery was not effected from the applicants but same has been foisted upon them;  FIR is delayed about two days for which no sufficient explanation is provided; applicants are in jail since 29.12.2011 but still case is not concluded.

4.         Counsel for State half heartedly opposed the bail application.

5.         Heard counsels of respective parties and perused the record.

6.         From the perusal of record, it reveals that complainant and applicants are caste fellow and residing in same village and allegedly applicants with open faces robbed complainant party, and have not tried to disguise their identity, this version apparently is not believable to a prudent mind that applicants despite knowledge about complainant and witnesses being their caste-fellows and village fellow robbed them without making any attempt to disguise their identity. Moreover when complainant had allegedly identified the accused persons at the time of incident yet he did not lodge FIR promptly but reported the matter with a delay of about two days without any explanation. I am conscious that mere delay in reporting the matter is not sufficient one to enlarge him on bail yet it creates doubt more particularly when the accused were known and no explanation is set forth for delay. The plea of the applicants/accused, being falsely robbed, cannot be brushed aside rather seems to be carrying weight. Further in this case reasonable doubt forms in prosecution story to believe that accused persons have committed offence, punishable more than ten years; recovery has been effected and applicants are in jail since 29.12.2011, without any progress in the trial of case, and they are not required for further investigation, therefore, bail cannot be withheld as conviction and applicants cannot be put behind the bar for indefinite period pending determination of their guilt.

7.         Under these circumstances, applicants have succeeded to bring their case within parameters of subsection (2) of section 497 Cr.P.C hence they are entitled for bail.

8.         By short order dated 22.10.2012 applicants were admitted to bail and these are the details reasons thereof. However, observations made hereinabove are tentative in nature and will not prejudice the merits of the case.

                                                                                                                        JUDGE

A.K