ORDER-SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Crl. Bail Appln. No. S- 91 of 2014.
Crl. Bail Appln. No. S- 102 of 2014.
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Date of hearing |
Order with signature of Judge |
28.11.2014.
Messrs Rafique Ahmed K. Abro, and Akeel Ahmed Bhutto, Advocates for applicants in both bail applications.
Kazi Manzoor Ahmed, Advocate for complainant.
Mr. Munir Ahmed Abbasi, D.D.P.P. alongwith SIP Habibullah, the I.O of the case.
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Abdul Maalik Gaddi, J: By this common order, I intend to dispose of above captioned two bail applications, as they arise out of same crime, bearing F.I.R No.10/2013, registered under Sections 364-A, 148, 149, 34 P.P.C at P.S Fatehpur, District Larkana.
2. The facts of prosecution case in nutshell are that, complainant Ahmed Ali lodged report with P.S Fatehpur, alleging therein that he was originally resident of village Rawat Khan Khero, however because of flood he shifted to Dokri town with his family. It is further alleged that brother of complainant has got dispute over landed property with Faiz Muhammad and others. That, on 13.10.2013, son of complainant, namely, Sabir Ali, aged about 12/13 years went to meet his uncle to the village, and at noon time complainant contracted his nephew Suhbat Ali and inquired about his son, who disclosed that his son Sabir Ali had not come to their village, then at about 4.30 p.m. his nephew narrated the facts to complainant over telephone that during search of Sabir Ali by him and Hoat Ali they found his motorcycle in the land situated in Deh Chakro; the complainant went to the land and then narrated the facts to police; so also foot prints were tracked, which disappeared in the land of Faiz Muhammad Bhaagat and leaded to the houses of persons of Jatoi and Bhagat communities and complainant came to know that his son has been kidnapped by accused Faiz Muhammad, Faqir Koural, Melao alias Moula Bux, Ghulam Mustafa, Gulzar, Ali Gul and two unidentified persons, on account of enmity over landed property in order to commit his murder.
3. I have heard the learned counsel for the parties and perused the record.
4. It is contended by the learned counsel for the applicants/ accused that the applicants/ accused are innocent and have been falsely implicated in this case with malafide intention on account of admitted enmity over landed property and the F.I.R appears to be false and concocted. Learned counsel further argued that, there is delay of 24 hours in lodging the F.I.R, for which no plausible explanation has been furnished. He further contended that the kidnapee Sabir Ali recorded his statement before police, in which the accused Melao has not been nominated by him and so also in his statement filed before learned IV-Additional Sessions Judge, Larkana he has not been specifically nominated the other accused involving them in the commission of the alleged offence. Leaned counsel further argued that during course of investigation, the applicants have been found innocent and such report was filed by the Investigating Officer of the case before the learned Magistrate, who did not accept it and joined the applicants in the case without assigning any good reason, therefore, according to learned counsel it is the case of two versions; one submitted by the police on the basis of investigation carried out by them and the other by complainant. According to learned counsel, which of the version is correct it would be determined at the trial and till then the case of applicants requires further inquiry. In support of his contentions the learned counsel placed his reliance on the case of Dilawar and others Vs. The State (2007 MLD 806). Learned counsel further submitted that there is longstanding enmity in between the parties, which is evident from the F.I.R No.21/2011, registered at P.S Fatehpur, under Sections 395, 506/2 and 342 P.P.C, by brother of the present complainant, namely, Muhammad Ali; another F.I.R bearing crime No.07/2013 of P.S Veehar, lodged by one Mir Khan, the relative of the present complainant against the applicant party. Learned counsel further argued that a civil suit is also pending in between the parties before learned IV-Senior Civil Judge, Larkana, bearing F.C. Suit No.09/2011, on dispute of landed property, therefore, under these circumstances, leaned counsel for the applicants was of the view that false implication of the applicants in this case cannot be ruled out, therefore, he has prayed for grant of bail in favour of the applicants.
5. Conversely, learned D.D.P.P assisted by learned Advocate for complainant, has argued that the applicants are properly nominated in the F.I.R with the allegation that they are involved in kidnapping of the complainant’s son Sabir Ali. He further argued that applicants/accused are involved in a case of heinous in nature and the bail to them may not be granted till the statement of the abductee is not recorded before the trial Court, as according to him, the prosecution has not investigated the matter in a honest manner because the statement of the abductee under Section 164 Cr.P.C was not recorded. However, during course of arguments he has supported the order passed by learned trial Court while rejecting the bail pleas of the applicants.
6. Perusal of the record shows that there is longstanding enmity in between the parties and this fact is evident even from the contents of the instant F.I.R, as well as F.I.R No.21/2011, registered at P.S Fatehpur, under Sections 395, 506/2 and 342 P.P.C, by brother of the present complainant, namely, Muhammad Ali; another F.I.R bearing crime No.07/2013 of P.S Veehar, lodged by one Mir Khan, the relative of the present complainant, and F.I.R No.09/2013 of P.S Fatehpur, under Sections 447, 506/2, 147 & 148 P.P.C against the applicant’s party, all these three F.I.Rs found false and were cancelled by police after adopting due process of law. Present F.I.R is also delayed for 24 hours. It is an admitted fact that a civil suit in between the parties in respect of landed property is pending before learned IV-Senior Civil Judge, Larkana, being F.C. Suit No.09/2011. Therefore, on these grounds, tentatively at this stage nomination of applicants in this F.I.R after due deliberation in this case cannot be ruled out.
7. It further revealed from the record that the alleged abductee has not been recovered from custody of any of the applicants/accused; and during course of investigation, the applicants/ accused were found innocent and such report under Section 173 Cr.P.C was filed before concerned Magistrate, who did not agree with the police report and joined the applicants in this case. The investigating agency found the applicants innocent and exonerated them on the basis of statements of some independent persons of the locality in the background of enmity and committing the offence against each other. Statements of abductee under Section 161 as well as 164 Cr.P.C have not been recorded. Under these circumstances the case in hand appears to be of two versions; one submitted by the investigating officer through his report before the Magistrate and the other by complainant, put forth by him through F.I.R. and which of the version is correct, it would be determined at the time of trial; till then in my tentative opinion the case of the applicants requires further probe, therefore, under the aforementioned facts and circumstances and while relying upon case of Dilawar and others (supra), both these bail applications are allowed. Consequently, the interim pre arrest bail already granted to applicants/accused Faiz Muhammad, Faqeer alias Koural and Gulzar dated 19.2.2014, is hereby confirmed on same terms and conditions, they are directed to appear before the trial Court; whereas applicant Melao alias Moula Bux is admitted to post arrest bail on his furnishing solvent surety in the sum of Rs.100,000/- (One hundred thousands) and P.R bond in the like amount to the satisfaction of the trial Court.
8. Since the whole case revolves towards the statement of abductee Sabir Ali, therefore, trial Court is directed to record the evidence of Sabir Ali within the period of fifteen days after receipt of this Order and after recording his evidence the complainant would be at liberty to file application for cancellation of bail, if he so advised, and trial Court shall dispose of the same as per law. It may be mentioned here that observations, if any in this order are tentative in nature and shall not effect the merit of the case.
9. In view of above, the cited bail applications are disposed of in above terms.
10. Above are the detailed reasons for my short order passed in Court on 28.11.2014.
Judge