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