ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

                                              Cr.B.A.No.S-  1164   of   2014

DATE        ORDER WITH SIGNATURE OF JUDGE

05.01.2015.

Mr. Zulfiqar Nabi, Advocate for applicant.

            Mr. Shahid Shaikh, A.P.G. for the State.

            None present for the complainant despite issuance of notices.

                                    =

MUHAMMAD JUNAID GHAFFAR, J:-             Through instant bail application, the applicant / accused namely Sahib Khan S/o Muhammad Mukhtiar, seeks post arrest bail in Crime No.165/2013 registered at Police Station Tando Jam U/s 395 PPC and Section 17(3) Offence against property (Enforcement of Hudood) Ordinance, 1979 as the trial Court has dismissed the bail application(s) vide orders dated 24.12.2013 and 04.10.2014.

2.         I have heard learned counsel for the applicant and learned A.P.G. and my observations are as follows:-

(i)        It appears that first bail application filed on behalf of the applicant was dismissed by learned trial Court vide order dated 24.12.2013, on the ground that accused is nominated in the FIR and the punishment provided under Section 395 PPC is for 10 years which falls within the prohibitory clause of Section 497 (1) Cr.P.C. However, so far as application of prohibitory clause of Section 497 (1) Cr.P.C. is concerned, the same does not appear to be correct appreciation of law, as the punishment provided under Section 395 PPC, is either for life imprisonment or for a term which shall not be less than 4 years nor more than 10 years and shall also be liable to fine. At the stage of bail, the lesser of two punishments is to be taken into consideration, as the quantum of punishment could only be decided by trial Court after recording of evidence. Reference in this regard may be placed in the case of Shahzore v. The State reported in 2006 YLR 3167.    

(ii)       In so far as nomination of present applicant / accused in the FIR is concerned, it appears that the complainant’s case is that he was driving Car No. AND-150 and on 04.12.2013 at around 0500 hours, five persons came to him and asked him to drop them to Badin to attend a ceremony against consideration of Rs.1300/-. As per the complainant, when they were on the way to the destination, accused persons pointed their pistols upon him and looted cash Rs.1500/- and robbed key of the car and snatched it away from the complainant. It is surprising to note that as per the version of complainant, before they could be boarded on the car, all five of them had disclosed their names with their parentage and which the complainant remembered while lodging the FIR. It is not conceivable that person(s) who intend to commit a criminal act would, prior to doing so, disclose their names with parentage to the complainant.

(iii)       Subsequently, the complainant had filed an affidavit before the learned trial Court wherein he has stated that in so far as present applicant / accused is concerned, the same is not the real culprit who had committed the robbery. The learned trial Court while dismissing the second bail application vide order dated 04.10.2014 has not appreciated such contention on behalf of the applicant / accused by relying upon the case of Nasir Ahmed v. The State (PLD 1997 SC 347), whereas, the learned counsel for applicant has relied upon a subsequent judgment of Honourable Supreme Court in the case of Muhammad Najeeb v. The State reported in 2009 SCMR 448, wherein the Honourable Supreme Court had granted bail by accepting the affidavit of the complainant regarding innocence of the applicant in that case. In the instant matter, since initially the complainant in his complaint has disclosed names of all the accused specifically with their parentage, and has subsequently filed an affidavit, whereby he has stated that the present applicant / accused is not the real culprit, the case of applicant becomes of further inquiry and respectfully following the principle laid down in the case of Muhammad Najeeb (supra), I am inclined to grant bail to the present applicant / accused, whereas the dictum laid down in the case of Nasir Ahmed (supra) is not applicable on the facts of the instant case, as the Honourable Supreme Court in the said case had refused bail not merely for the reason that affidavit filed by the witness was not considered appropriate, but even otherwise, there were several other reasons which prevailed upon the Honourable Supreme Court while refusing bail. Further in the instant matter, affidavit has been filed by the complainant himself and not any other witnesses.  

3.         In view of hereinabove, I am convinced that in instant case there are sufficient grounds for further enquiry and the case of the applicant / accused was covered under section 497(2) Cr. P.C., whereas it also does not fall within the prohibitory clause, consequently the applicant / accused has made out a case for admission to bail and by means of a short order, I had granted bail to the applicant / accused on furnishing surety of Rs.100,000/- (One lac) with P.R. Bond in the like amount to the satisfaction of the trial Court. These are the reasons of short order passed today in Court.  

4.         The above bail order has been passed by me in the format prescribed by the Honorable Supreme Court in the case of Nazir Ahmed v. The State reported in PLD 2014 SC 241, whereby I have not reproduced the entire contents of the FIR as well as the details of the arguments so raised by the learned Counsel for the applicant as well as learned A.P.G.                          

                                                                                                            JUDGE

Tufail