ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA

Cr. Bail Appln. No.D-49 of 2013.

DATE OF HEARING

ORDER WITH SIGNATURE OF HON’BLE JUDGE

09.01.2014.

1. For orders on office objection.

2. For orders on M. A. No.2883/2013.

3. For hearing.

Mr. Habibullah G. Ghouri, advocate for the applicant.

Mr. Imtiaz Ali Jalbani, Assistant Prosecutor General.

O R D E R.

Aftab Ahmed Gorar, J.- Applicant/accused Ghulam Mustafa Khaskheli seeks post arrest bail in crime No.71/2013, registered at Police Station Ratodero on 14.5.2013, under Section 365-A, P.P.C.

2. Brief facts of the prosecution case as disclosed in the F.I.R are that on 14.5.2013 complainant Sahib Khan Brohi appeared at Police Station Ratodero and stated that on 6.5.2013 he alongwith his brother Hazar Khan, aged about 30/32 years and his friend P.W Abdul Aziz son of Muhammad, by caste Veesar, aged about 35 years and the nephew of the complainant, namely, Chakar Ali son of Sikandar Ali Brohi and P.W Muhammad Younis, resident of Village Chungal, Taluka Ratodero, came from the village on two motorcycles to the Ratodero town. It is alleged that P.Ws Hazar Khan Brohi and Abdul Aziz went on the motorcycle to the cloth shop of relative Khadim Hussain. Thereafter, complainant alongwith two witnesses left Ratodero on the motorcycle. After some time they went to the shop of Khadim Hussain Brohi and enquired about P.Ws Hazar Khan and Abdul Aziz. They were informed that they had left the shop at 8.00 p.m. Thereafter, complainant contacted his brother Hazar Khan on the mobile No.03453847036, who informed that he had gone with P.W Abdul Aziz on the motorcycle to the Larkana and stayed night due to late hours at Larkana and would return back on the next morning, but they did not return home and their mobiles were found off. Complainant appeared at police station and suspected that his brother Hazar Khan and P.W Abdul Aziz have been kidnapped by some unknown persons and lodged such report by giving details of the motorcycle and cellular phones carried by them. F.I.R was recorded by SIP Ratodero vide crime No.71/2013, under Section 365-A, P.P.C.

3. After registration of the F.I.R, 161, Cr.P.C statements of the P.Ws Sahib Khan, Muhammad Younis and Chakar Ali were recorded on 14.5.2013. SIP P.S Ratodero inspected the place of wardat on 14.5.2013. Abductees were recovered and their statements were recorded. On the conclusion of the investigation challan was submitted against the accused under the above-referred sections in the Court of learned Judge, Anti-Terrorism, Larkana.

4. Bail application was moved on behalf of the accused Ghulam Mustafa on the basis of the affidavits filed by complainant Sahib Khan and abductees Hazar Khan and Abdul Aziz. The same was rejected by trial court vide order dated 03.10.2013. Thereafter, applicant approached this Court.

5. Mr. Habibullah G. Ghouri, learned advocate for the applicant/accused, contended that complainant and both abductees have filed the affidavits before the trial Court and exonerated the applicant/accused from the commission of the offence. He has submitted that prosecution case has become doubtful and prosecution would not succeed so far present accused is concerned in the case. In support of his contentions he relied upon the cases reported as Muhammad Najeeb v. The State (2009 SCMR 448) and Syed Amanullah Shah v. The State (PLD 1996 S.C 241).

6. Mr. Imtiaz Ali Jalbani, A.P.G., appearing on behalf of the State, opposed the bail application, mainly on the grounds that in the statements of the abductees recorded during the investigation they have implicated the applicant/accused in the commission of the offence. He has submitted that affidavits have been obtained by the accused by some pressure.

7. We have carefully heard the learned Counsel for the parties. Complainant Sahib Khan and abductees Hazar Khan and Abdul Aziz voluntarily appeared before this Court. They admit the contents of the affidavits and clearly state that applicant/accused was not involved in the commission of the offence and further stated that they have sworn the affidavits without any pressure. In these circumstances, apparently, by filing of the affidavits by complainant and the abductees prosecution case has become doubtful so far present accused is concerned. Learned advocate for the applicant/accused has rightly relied upon the above cited authorities. The Honourable Supreme Court in the case of Muhammad Najeeb (supra) has been pleased to observe as under :-

“Though initially petitioner was nominated in the F.I.R. by the complainant as an accused but later on through affidavit he stated that he is satisfied with regard to the innocence of the petitioner and does not want to proceed with the matter. This aspect of the matter has not been taken into consideration by the Courts below. We without touching the merits of the case are of the view that case of petitioner is of further inquiry.”

8. In the case of Syed Amanullah Shah (supra), the Honourable Supreme Court has recorded the following observations :-

“To deprive a person of his freedom is most serious. It is judiciously recognized that unfortunately there is a tendency to involve the innocents with a guilty. Once an innocent is put under arrest, then he has to remain in jail for considerable time. Normally it takes two years to conclude the trial in a murder case. Ultimate conviction and incarceration of a guilty person can repair the wrong caused by the mistaken relief of interim bail granted to him but damage to an innocent person caused by arresting him, though ultimately acquitted, would be always beyond repair. So whenever reasonable doubt arises with regard to the participation of an accused person in the crime or about the truth/probability of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail. In such a situation, it would be better to keep an accused on bail then in the jail, during the trial. Freedom of an individual is a precious right. Personal liberty granted by a Court of competent jurisdiction should not be snatched away from accused unless it becomes necessary to deprive him of his liberty under the law. Where story of prosecution does not appear to be probable, bail may be granted so that further inquiry may be made into guilt of the accused.”

9. In the case of Syed Amanullah Shah (supra) it has been held that whenever reasonable doubt arises with regard to the participation of an accused person in the crime or about the truth or probability of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail and in such a situation it would be better to keep accused person on bail then in the jail during trial.

10. For the above-stated reasons while respectfully relying upon the above-cited authorities, prima facie, it appears that a case for grant of bail to the applicant/accused Ghulam Mustafa is made out and case against the applicant/accused requires further inquiry as contemplated under sub-section (2) of Section 497, Cr.P.C. Accordingly, concession of bail is extended to the applicant/accused upon his furnishing surety in the sum of Rs.200,000/- (rupees Two Lacs) and P.R bond in the like amount to the satisfaction of the trial Court.

11. Needless to mention here that the observations made hereinabove are tentative and the trial court shall not be influenced while deciding the case of the applicant/accused on merits.

JUDGE