ORDER-SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA
Crl. Bail Appln. No. S- 168 of 2018.
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Date of hearing |
Order with signature of Judge |
11.06.2018.
Mr. Mazhar Ali Bhutto, Advocate for applicant.
Mr. Safdar Ali Ghouri, Advocate for complainant.
Raja Imtiaz Ali Solangi, A.P.G.
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Khadim Hussain Tunio, J- Through instant bail application, applicant Arbab alias Abdul Rasool Bhatti is seeking post-arrest bail in a case registered vide Crime No.15/2017, at P.S Mahota (District Larkana), for offence punishable under Sections 365-B, 363, 380, 457 & 34 P.P.C. His similar prayer was declined by the learned trial Court, vide order dated 29.03.2018.
The facts of the prosecution case are that on 06.06.2017, complainant Gul Muhammad Chacher lodged report with P.S Mahota, in the following wording:
“It is compliant that, on 05.06.2017, I, my son Abid Ali, my nephew Fida Hussain son of Mithal Chacher were sleeping on separate cots. My daughter Naheed, aged about 16/17 years and my son Israr Ali aged about 08-years were sleeping on one cot; electric bulbs were glowing. At about 12.10 p.m. (night) due to commotion I woke up and saw that accused Abbas son of Sulleman Bhatti, resident of town houses near Ali-abad, Taluka Sijawal, District Kamber-Shahdadkot @ Kamber and three unknown persons with open faces, who could be recognized if seen again; all of them were having pistols in their hands and accused Abbas Bhatti was also having a black color bag in his hand and on show of force of pistol they were taking away with them, my daughter Naheed and my son Israr Ali. I challenged them, to which accused Abbas Bhatti while aiming pistol asked not to chase us, as he has been abducting away Naheed for marrying her. Then, all the accused boarded in a sleti color car parked outside the house and went away towards northern directions. We came back and noticed that fetter / chain of outer door was cut-off and we verified the house and found that below detailed ten Tola gold, cash of Rs.7 lacs and ladies clothes were missing and stolen away. Then, I tried for return of incriminating on my own through brothery, but could not succeed, therefore, I have come and report the matter; investigation may be made.”
The main contentions of the learned counsel for the applicant are that name of the applicant does not appear in the F.I.R, as well as in 161 Cr.P.C statements of the prosecution witnesses recorded at first instance, but his name has been disclosed by the complainant and PWs in their further statements and such further statements amount to false and fake improvement and same would neither be equated with first information report nor be read as part of it. He further contended that case stands challaned and custody of the applicant is no more required by police for investigation purpose. Counsel submits that the learned trial Court has declined bail to the applicant on the ground that he has remained absconder, which is no ground for refusing bail in view of the verdicts of Hon’ble Supreme Court. In support of his contentions, learned counsel placed his reliance on the case laws reported as Muhammad Mithal alias Imam Bux v. The State (2012 YLR 515), Amir Bux v. The State (2012 YLR 668), Abdul Rasheed and another v. The State (2012 YLR 486) and case of Mitho Pitafi versus THE State (2009 SCMR 299) and Sharbat & another versus THE State(SBLR 2003 Sindh 848).
Conversely, learned A.P.G. in view of submissions made by learned counsel for applicant half-heartedly opposed bail plea. However, learned Advocate for complainant vehemently opposed grant of bail while arguing that applicant has been named by the complainant and his witnesses in their further statements and that he has shared common intention with the principal accused in commission of an offence of heinous nature.
I have given due consideration to the submissions made by the learned counsel for parties and perused the record. Perusal of record shows that name of applicant is neither disclosed in the F.I.R nor in 161 Cr.P.C statements of witnesses recorded at earlier stage of investigation, but later on name of applicant has been disclosed in further statements by the complainant and his witnesses, which amount to false and fake improvement in the case. This sole fact brings the case of applicant within the ambit of further enquiry.
In case of Tahir Abbas v. The State (2003 SCMR 426), the Hon’ble Supreme Court of Pakistan has discussed upon veracity of “further statement” and has held/ observed as under:
“….The complainant however subsequently on 17.4.2001 made a supplementary statement in which he involved the petitioner also. The petitioner is living in the same locality at a distance of about few yards and the parties were known to each other, therefore, there was no explanation as to why if the petitioner was involved, he was left out when the F.I.R was got registered as the ground of mistake about the identity of the petitioner prima-facie is not available”.
In another case of similar nature, i.e. case of Noor Muhammad v. The State (2008 SCMR 1556), the Hon’ble Supreme Court has held as under:
“6. It is an admitted fact that the complainant did not mention the name of the petitioner and co-accused in the F.I.R but later on implicated them in the commission of offence through supplementary statement recorded before the Investigating Officer on the same day. The complainant has failed to disclose as to how he came to know the name of the accused. In case the contents of the first information report and supplementary statement are put in juxtaposition then it is crystal clear that the complainant has taken altogether U-Turn from his previous stand. This fact makes it a case of further inquiry under section 497, Cr.P.C. Moreover, since name of the petitioner and co-accused were not mentioned in the F.I.R and was mentioned in the supplementary statement by complainant which fact also brings the case within the ambit of further enquiry”.
So far as, absconsion of the applicant is concerned, it is well settled law by now that mere absconsion would not come in way of grant of bail, if otherwise a case for bail is made out. In this regard, the Honourable Supreme Court of Pakistan in the case of MITHO PITAFI versus THE State (2009 SCMR 299), has observed that bail could be granted, if the accused has good case for bail on merits and mere his absconsion would not come in the way while granting him bail.
Keeping in view all the above facts and circumstances the case of applicant falls within the ambit of further enquiry as envisaged in Section 497 Cr.P.C. Accordingly, for these reasons, the instant bail application was allowed vide short Order dated 11.06.2018 whereby applicants was admitted to bail upon his furnishing solvent surety in the sum of Rs.100,000/- (One hundred thousand rupees) and P.R bond in the like amount to the satisfaction of trial Court.
JUDGE
Ansari/*