IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR
Crl. B.A. No.D-137 of 2017
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DATE OF HEARING |
ORDER WITH SIGNATURE OF JUDGE |
For hearing.
Present:
Mr. Justice Syed Hassan Azhar Rizvi
Mr. Justice Rasheed Ahmed Soomro.
Mr. Qurban Ali Malano Advocate for applicants.
Mr. Muhammad Suleman Kalhoro Advocate for complainant.
Mr. Abdul Rehman Kolachi, Assistant Prosecutor General a/w Inspector Abdul Muniam Larik of P.S. Naushhero Feroze/I.O. of the case.
Date of hearing: 20-04-2017
O R D E R
RASHEED AHMED SOOMRO J., Through captioned post-arrest bail application, applicants Kamil Khan, Ali Akbar, Faheem and Gul Hassan have impugned order dated 27.02.2017, passed by the learned Judge, Anti-Terrorism Court, Naushehro Feroze, in Crime No.347/2016, under Sections 452, 386, 324, 337-H(II), 504 PPC read with Sections 6/7 ATA, registered at Police Station Moro whereby their earlier bail application was declined.
2. Relevant facts narrated in instant bail application are that on 28.12.2016, complainant Sajid Ali Mangi, CMO, Moro was present at his bungalow alongwith his driver Waqar Ali and cook Ayaz Ali, when at about 2115 hours, accused persons, namely, 1. Kamil Zardari with rifle, 2. Aamir with repeater, 3. Faheem with DBBL gun, 4. Gul Hassan with pistol, 5. Shahid alias Makori 6. Ali Akbar with pistols and 2/3 unidentified persons with rifles, entered in the bungalow of complainant and aimed their weapons upon the complainant. Accused Kamil asked the complainant that he had already demanded Bhatta of Rs. Ten lacs, but he did not understand the language, therefore, today either he pay extortion amount or be ready for murder, on which complainant disclosed that being government employee he is not in a position to pay such a huge amount, on which accused persons started straight firing upon complainant with intention to commit his murder, but luckily complainant saved himself by running towards room and locked the door, however, accused persons while making aerial firing in order to create terror and using abusive language went away. Thereafter, Nekmards of locality came and found the complainant in a room.
3. Learned Counsel for applicants contended that applicants are innocent and have nothing to do with the alleged offence. He further contended that section 386 PPC is not applicable in the present case as only demand of extortion of money is alleged, but it was not paid by the complainant. He further contended that sections 452, 324, PPC and 7 ATA are also misapplied by the police. He further contended that there is delay of one hour in lodgment of FIR but no plausible explanation has been furnished by the complainant. He also contended that applicants are no more required for the investigation as the challan has been submitted.
4. While controverting the above submissions, learned Assistant Prosecutor General contended that applicants are nominated in the FIR and on the show of weapons they demanded extortion/Bhatta amounting to Rs. Ten lacs from the complainant and also made straight firing upon him, but luckily he saved his life. Lastly, he opposed the grant of bail to the applicants.
5. Learned counsel appearing on behalf of complainant simply opposed the grant of bail to the applicants.
6. Heard learned Counsel for the parties and examined the material available on record, which emanates that applicants entered in the house of complainant, duly armed with deadly weapons and demanded Bhatta by showing weapons. Admittedly, house of complainant is situated in Moro town and it is the case of prosecution that when complainant refused to pay Bhatta, applicants made firing in order to commit qatl-e-amd of complainant, but the complainant confined himself in a room. Moreover, firing was made in such a thickly populated area, but inspite of that none from the locality has been cited as witness. Record further reflects that complainant was got out from the room by Nekmards of locality but neither their names have been given by the complainant in the FIR nor I.O of the case recorded their statements under section 161 Cr.P.C. During course of investigation, complainant has even not disclosed his cell number and number of the Nekmards who were called by him during his self-confinement. I.O during course of investigation has failed to collect such phone record. Indeed, after conclusion of investigation challan has been submitted before the competent court of law.
7. Applicants are behind the bars since their arrest. Case has been challaned, the applicants are no more required for investigation. Nothing is available on record to show that accused have been involved in similar type of cases in past, therefore, no useful purpose would be served by keeping them behind the bars. Thus, their further incarceration has not served any beneficial purpose at this stage. An accused cannot be kept in jail for an indefinite period as a measure of advance punishment. Reliance is placed on the case of Hamid Ali v. The State reported in 2009 SCMR 737.
8. In case of Syed Amanullah Shah v. The State (PLD 1996 SC 241), it is held as under:
“Whenever reasonable doubt arises with regard to the participation of an accused person in the crime or about the truth or possibility 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 him on bail then in the jail during the trial”.
9. For what has been discussed above, the case of the applicants calls for further inquiry into their guilt covered by sub-section (2) of section 497 Cr.P.C. Consequently, by our short order dated 20.04.2017, applicants Kamil Khan, Ali Akbar, Faheem and Gul Hassan were admitted to bail subject to their furnishing solvent surety in the sum of Rs.200,000/- (Rupees Two Lacs) each and PR bond in the like amount to the satisfaction of trial Court. These are the reasons in support of our short order dated 20.04.2017.
10. The observations made above are tentative in nature and learned trial Court shall decide the case strictly on merits.
Bail application stands disposed of in the above terms.
JUDGE
JUDGE
Ahmad