ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Bail Appln. No. 59 of 2009.   

 

Date

Order with signature of Judge

 

For hearing

27.04.2009.

                        Mr. Aijaz Ali Shah, Advocate for the applicant.

                        Mr. Naimatullah Bhurgri, State counsel.

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Syed Shafqat Ali Shah Masoomi, J-.     This bail application is directed against the order dated 28.07.2008, passed by the learned Additional Sessions Judge-II, Shikarpur, in criminal bail application No. 158/2008, for allegedly having committed offence punishable under section 17 (1), 17 (2), Offence Against Property (Enforcement of Hudood) Ordinance, 1979, 324, 353, 34 P.P.C, being crime No. 74/2007, registered with P.S Khanpur, of district Shikarpur.

 

2.                     Brief facts of the prosecution case in nutshell are that complainant Head constable Mohammad Tahir Khunharo lodged above F.I.R, on 09.8.2007, stating therein that, he alongwith PC Mehrab Ali were going for picket duty from Rahimabad to Mangi diversion, vide roznamcha entry No, 6, when at about 1900 hours they saw one white colored car coming from Rahimabad  and all of sudden four persons emerged from the bushes to rob the said car and they indicated it to stop, out of the said persons two were armed with kalashnikoves, while other were armed with guns; they were with open faces. Then they saw police party they left the car and started firing upon the police party, which the police party retaliated. The encounter continued for ten minutes, during which PC Mehrab Ali received injuries. Then all the culprits made their escape good. Then the complainant informed the situation to his SHO, as such SHO Ahmed Nawaz Rind, ASI Imamdino and SPO Khanpur alongwith their subordinate staff arrived the place of vardat, and they removed injured to hospital, where they saw that PC Mehrab Ali had received slightest injury on his right arm. Complainant has further stated in the F.I.R that on the light of vehicle PC Khamiso Khan and PC Shahani Khan took foot prints of accused, which led them to village Goro Pahore in the Otaq of Taj Mohammad Shar, but none was present there. Then complainant came to police station and lodged report to the above effect.

 

3.                     Earlier, bail plea of the applicant has been declined by learned trial court i.e. 2nd Additional Sessions Judge, Shikarpur, hence this bail application.

 

4.                     Learned counsel for the applicant has mainly contended that there is inordinate delay of 24 hours in lodging the F.I.R, which has not been plausibly explained, although distance between place of vardat and police station was 5/6 kilometers away, even then the F.I.R was not lodged promptly.  Learned counsel for applicant further contended that name of the applicant does not transpire in the F.I.R.  He next contended that identification parade has been held after one month. The private witnesses who was shown in present case is driver, namely, Shah Nawaz Lashari, even his statement was not promptly recorded in respect of above crime. His statement was recorded after two months. He further contended that nothing incriminating article has been recovered from applicant, even after his arrest.

 

5.                     Learned State counsel conceded to grant of bail to applicants/ accused.

 

6.                     It is admittedly fact that the F.I.R is delayed for 24-hours. From perusal of F.I.R, it appears that neither the name of the applicant is mentioned in the same, nor features or marks of identification of accused are shown. It is mentioned in the F.I.R that complainant party went to village Goro with the assistance of foot tracker and thereafter registered F.I.R, inspite of that the names and features of the accused have not been mentioned in the F.I.R.  Identification parade has been held on 09.01.2008, after arrest of the applicant, who was already in custody of police after his arrest,  and at this stage it cannot be relied upon the values of the identification parade, because the complainant, who has identified the applicant might had seen the applicant after his arrest at police station.  There is also delay of two months in respect of conducting identification parade after registration of F.I.R.  the statement of the private witness who has been cited in the F.I.R i.e. driver Shahnawaz has been recorded on 3rd day of lodging of the F.I.R.  Even the said witness has not disclosed the name of applicant in his statement.  Admittedly, this case was registered by head constable of the same police station who should have to register the F.I.R promptly.  In the existing circumstances, the whole case is based on the identification parade, in which the complainant has identified applicant after his arrest, who must have been kept at police station before producing him before the Magistrate for identification parade.  Therefore, the case of applicants comes within the ambit of further enquiry. The applicant is therefore, admitted to bail in the sum of Rs.200,000/- (Two lacs) on his furnishing solvent surety and P.R bond in the like amount to the satisfaction of trial court. However, the learned trial court is directed to conclude the trial within period of four months.

                       

7.                    The observations made hereinabove are tentative in nature for the purpose of only disposal of bail application and may not influence the mind of trial court which is free to appraise the evidence strictly according to merits of the case.

 

 

 

                                                                                                            Judge