ORDER SHEET

 

IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

 

Cr. Bail Application No. S-275 of 2018.

 

Date

               Order with signature of Judge

                                      

Applicants:               1. Aijaz Ali son of Ali Khan Dahiri.

                                      2. Ghulam Sarwar s/o Sultan Dahiri through Mr. Fayyaz Ahmed Soomro advocate.

Complainant:            Mohan Das through Mr. Amanullah G.Malik advocate.

The state.                    Through Mr. Abdul Rehman Kolachi, Deputy Prosecutor General.

 

Date of hearing.        29-10-2018.

Date of decision.       29-10-2018.

 

O R D E R.

AMJAD ALI SAHITO, J.- Through the instant bail application, applicants/accused Aijaz Ali and Ghulam Sarwar both by caste Dahiri seek post-arrest bail in Crime No.  52 of 2017 for the offences punishable u/s 452, 342, 386, 427, 147, 148, 149, 506/2 P.P.C registered with police station Darya Khan Marri. Prior to this their post-arrest bail application was declined by learned III-Additional Sessions Judge Naushehro Feroze vide order dated 05-04-2018, hence the applicants/accused have filed the instant bail application.

2.      Briefly, the facts of the prosecution case are that complainant Mohan Das lodged the F.I.R. on 25-03-2017 alleging therein that on 21-03-2017 he along with his other house inmates were available in the house. At about 6-00 am they woke up on knock of the door and saw that about 26/27 armed persons after breaking the outer door entered in the house. Complainant party identified the said persons to be Farhan Dahiri with pistol, Farooq alis Kaloo with 44bore rifle, Hussain Bux with repeater, Khair Muhammad with rifle, Naeem with repeater, Attar Muhammad and Akbar with guns, PC Aijaz Ali Dahiro, PC Ghulam Sarwar with rifles and 17/18 unidentified persons with different weapons. While coming the accused persons pointed their weapons towards the complainant party and directed them to keep calm. Then accused persons confined Bhoj Raj brother of complainant in a room and also pushed and dragged the women folks of the complainant party and asked to vacate the house. Accused Farhan Dahiro asked the complainant party that they were paying the extortion after every three months and he also demanded the same and if they will not pay the extortion, then to vacate the house. Then complainant party raised cries, which attracted to so many peoples, seeing them coming, accused persons went away by extending threats of dire consequences. Ultimately complainant lodged the above said F.I.R.  After completion of investigation, the I/O has submitted report u/s 173 CrPC before the Judge ATC Naushehro Feroze and subsequently by way of C.P No.D-1618/2017 the case was withdrawn from the Court of Judge ATC Naushehro Feroze and transferred to the Court of Sessions Judge Naushehro from where the same was transferred to the Court of III-Additional Sessions Judge Naushehro Feroze.

3.      It is, inter-alia, contended by the learned counsel for the applicants/accused that applicants/accused are innocent and have falsely been implicated in this case by the complainant due to dispute over the property and such conveyance deed is annexed being annexure-J at page No. 113 where the complainant party is residing; that the enquiry was conducted by the ASP Shaheed Benazirabad, which is produced as annexure-B at page No. 25, in which the applicants/accused were exonerated from the commission of offence; that the report submitted by Inspector Sirajuddin Lashahr to the I.G Sindh in conclusion para disclosed that section 386 P.P.C has not been made out and all other sections does not fall within the prohibitory clause of section 497 CrPC; that the case has been challaned, applicants/accused are in custody since 26-03-2017 and they are no more required for further investigation and he lastly pray for grant of bail. He placed his reliance on cases reported in 2014 SCMR 27 Nisar Ahmed V. The State reported and in 2009 SCMR 1488 ZAFAR IQBAL V. MUHAMMAD ANWAR  and others reported.

4.                On the other, learned counsel for complainant opposed the grant of bail to the applicants/accused on the ground that applicants/accused are nominated in the F.I.R with specific role as they have misused their official position and powers; that the applicants/accused have fully participated in the commission of offence and issued threats of dire consequences; that after registration of F.I.R., I/O has recorded 161 Cr.P.C statements of PWs, who have fully supported the version of complainant.

5.                Learned DPG for the State has conceded the bail plea of applicants/accused on the ground that main section 386 P.P.C has been excluded from the case while all other sections does not fall within the prohibitory clause of section 497 CrPC. He further submitted that ASP Shaheed Benazirabad has conducted the enquiry in which he has also disclosed that there is dispute between Mohan Das and Farhan Dahiri over the residential property and he has not implicated the applicants/accused for the commission of offence.

6.                I have considered the submissions of the learned counsel for the applicants/accused, learned counsel for the complainant, learned DPG for the State and have gone through the material available on the record with their assistance.

7.                It is admitted position that there is inordinate delay of about 4 days in lodgment of the F.I.R. and such delay has not been plausibly explained by the complainant, although the police station was situated at the distance of only 02 furlongs, in spite of that complainant has not lodged the F.I.R. promptly, which shows malafide on his part. The allegations against the applicants/accused are general in nature. There is a dispute between co-accused Farhan Dahiri and complainant over the house and such convince deed is available at page No. 103. The investigation has been completed and main section 386 P.P.C has been deleted and all other sections do not fall within the prohibitory clause of section 497 CrPC.  It is also one of an important aspect of the case that an accused charged for a criminal offence, ordinary cannot be kept in the custody for the indefinite period. In the instant case, the applicants/accused are confined in the jail since last one year and they are no more required for further investigation. In case of Zafar Iqbal supra, it has been held by the Hon’ble Supreme Court of Pakistan, that where offence falls within the non-prohibitory clause of section 497 Cr.P.C, consider favorably by granting bail as a rule but decline to do so in exceptional cases. As far as exceptional circumstances are concerned those are to be taken into consideration depending upon each case, therefore, learned counsel for the applicants has made out the case for grant of bail,

8.                For what has been discussed above and taking guidelines from the case law referred above, the case of the applicant/accused become one of further enquiry as covered by sub-section (2) of section 497 CrPC. Accordingly the instant bail application is allowed and applicants/accused namely Aijaz Ali and Ghulam Sarwar are admitted to bail subject to furnishing their solvent surety in the sum of Rs. 100,000/- each and P.R bond in the like amount to the entire satisfaction of learned trial Court.

9.                     Needless, to mention that the observations made hereinabove are tentative in nature and would not prejudice the case of either party at trial.                             

                                                                                               Judge

                                                       

 

Nasim/P.A