IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Criminal Bail Application No. S- 358 of 2021
Applicant :
Jahangeer Bozdar s/o Khair
Muhammad, through Mr. Shabbir Ali Bozdar, advocate
Complainant : Wazeer Ahmed Abro s/o Jhangal
Respondent : The
State, through Mr. Syed Sardar Ali Shah,
Deputy
Prosecutor General, Sindh
Date
of hearing : 16.08.2021
Date of order :
16.08.2021
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ORDER
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ZAFAR AHMED RAJPUT, J:- Applicant/accused Jahangeer Bozdar being abortive to get the
concession of post-arrest bail from the Court of IV- Additional Sessions Judge,
Mirpur Mathelo in Sessions Case No. 107 of 2021, vide order dated 22.05.2021,
through this application seeks the same concession from this Court in Crime/FIR
No. 15 of 2021, registered under sections 459, P.P.C. at Police Station Mirpur
Mathelo.
2. Precise allegations against the
applicant, as per the FIR, are that on 25.01.2021 at 02:30 a.m., at the house
of Jahangeer Jahanzaib, the cousin of the complainant, he along with two
unknown accused persons, while committing lurking house-trespass cause lathi
below to Jahangeer Jahanzaib and on the cries of complainant and P.Ws he run
away with stolen properties viz. one electric motor, one smart watch, one DVD
player, for which applicant, along with two other co-accused, was booked in the FIR.
3. Learned counsel for the applicant has
mainly contended that the applicant is innocent and has committed no offence
whatsoever as alleged by the complainant; that the applicant was arrested on the
very day near from the house of complainant, as a quarrel was taken place
between the applicant and the complainant, who called the police and got the
applicant arrested; that there is implausible delay of 17 hours in lodgment of the
FIR; that the injuries allegedly caused to injured as per MLC are Ghayr-i-Jaifah
Damiyah, which is non-cognizable and punishable for imprisonment of one
year; that nothing has been recovered from the possession of applicant and the
alleged recovery has been foisted upon him; that the allegations against the
applicant are absurd and baseless and no reasonable grounds exists to believe
that he has committed the alleged offence; as such, he is entitled for the
concession of bail on the ground of further inquiry. In support of his
contentions, learned counsel has relied upon the case of Muhammad Tanveer
v. The State and another (PLD 2017 SC 733),
Qurban
Ali v. The State and others (2017
SCMR 279), Jamsher Mazari v. The State (2009 YLR 387),
Shammon alias Samandar v. The State (2007 MLD 294) and Shoukat
v. The State (2007 P CR. L J 2034).
4. Conversely,
learned counsel for the complainant has vehemently opposed the instant application
on the grounds that the applicant is nominated in the FIR by name and the
recovery of the article has been effected from him; that no previous enmity
exists between the applicant and the complainant; that the eye-witnesses in
their statements have fully connected the applicant with the commission of
alleged offence; that the alleged offence falls within the prohibitory clause
of section 497, Cr.P.C. as the offence under section 459 P.P.C. is punishable
for imprisonment for life or imprisonment for ten years; that the applicant is
a habitual offender and has earlier involved in at least three cases registered
at P.S. Jarwar, District Ghotki viz. (1) Crime No. 2/2020, under section 459
& 380, P.P.C. (2) Crime No. 3/2020, under section 457 & 380, P.P.C. and
(3) Crime No. 4/2020, under section 24 of the Sindh Arms Act, 2013 and since no
case of further inquiry has been made out, the applicant is not entitled for
the concession of bail. Learned counsel in support of his contentions has
relied on the case of Insaf and another v. The State (2021 YLR
338), Ayaz Ali v. The State (2021 MLD 669) and Muhammad
Kamran Bhatti v. The State (2018 YLR 1554).
5. Learned D.P.G has adopted
the argument of learned counsel for the complainant.
6. Heard the learned counsel for the parties
and perused the material available on record with their assistance.
7. The applicant is confined in judicial custody since
04.02.2021 and the police has submitted challan against him; as such, he is not
required for further investigation. The complainant has nominated the applicant
specifically in the FIR but he has nowhere stated that the applicant was known
to him intimately. The complainant has lodged the FIR after delay of 17 hours,
if he knew the applicant; he should have gone to police station immediately to lodge
the FIR. As per FIR, complainant, his
cousin Abdul Kareem, injured Jahanzaib Jahangeer and other family members were
present in the house on the night of incident, but difficult to understand that
the applicant succeeded to ran away along with alleged stolen articles and they
did not chase and held him. As per memo of arrest and recovery, the applicant
was arrested from Bye-Pass, near Star Petrol Pump, along with stolen articles;
however, no explanation is available with prosecution as to how the applicant
reached the place of arrest along with stolen articles. In these circumstances,
the case against the applicant calls for further enquiry as
envisaged under sub-section (2) of Section 497, Cr. P.C. The argument that the applicant has been
involved in three other cases would not come in the way of grant bail so long
as there is nothing on the record to show that he has been convicted in any one
of them. I; therefore, admit the applicant to bail subject to his furnishing
solvent surety in the sum of Rs.50,000/- (Rupees Fifty Thousand only) and P.R.
Bond in like amount to the satisfaction of the trial Court.
8. Needless to mention here
that the observations made hereinabove are tentative in nature and would not
influence the trial Court while deciding the case of the applicant/accused on
merits. However, in case the applicant misuses
the concession of bail in any manner, the trial Court shall be at liberty to
cancel the same after giving him notice, in accordance with law.
9. Above are the reasons of my short order
dated 16.08.2021.
JUDGE