Cr. Bail Application No.446 of 2009.

For hearing.

6.7.2009. M/s. Shaikh Abdul Ghani and Qurban Ali Malano advocate for the applicant.

Mr. Ali Hyder Dareshani advocate for the State.

The applicant is seeking bail in Crime No.36 of 2009 P.S Ranipur for offence under section 17/3 Offences Against Property (Enforcement of Hudood) Ordinance, 1979, 395, 342 PPC.

The case of the prosecution as unfolded in the FIR lodged on 11.5.2009 at P.S Ranipur by complainant Allah Wadhayo alleging therein that he is driver of Khalid Hussain Shaikh. On 8.4.2009 he alongwith Rustam and Abdul Malik after taking the below detailed articles from the flat of Khalid Hussain Shaikh were going from Karachi to Gambat in the car. When they reached near Gadeji bridge National highway, suddenly one white colour car crossed them and stopped in front of their car, then complainant party stopped their car, five persons armed with pistols alighted from the car, the complainant party seen and identified them as Zulfiqar @ Zulfi, Altaf and three unidentified persons, who can be identified if seen again. They overpowered the complainant party, alighted them from the car, then accused Zulfiqar @ Zulfi Shaikh (present applicant) snatched the keys of car from the complainant and then robbed below detailed cash amount and mobile phone. Accused Altaf Bhayo robbed mobile phone and then made sit the complainant party in the rear seat of the car and took them in the car. After half an hour complainant party open their eyes themselves and saw that they were available near Shah Ji Machine, then they went to Admore Patrol Pump near Tool Plaza Ranipur, disclosed the facts of incident to the owner of Car and articles, who arrived there and complainant disclosed the facts of incident to him. Thereafter complainant met with the accused Zulfiqar @ Zulfi at Khuhra, who kept the complainant on hope, ultimately refused, therefore complainant appeared at P.S and lodged the FIR.

Heard the learned counsel for the applicant as well as learned State counsel who straight away states that it is a case of further enquiry as the articles recovered from the applicant are contrary to the articles mentioned in the FIR

There is inordinate delay of one month and three days in lodging of FIR, considering this fact false implication of the applicant cannot be ruled out. Alleged car, two C.Ds, two projectors, one multimedia, two laptop computers, one mobile phone Nokia E-90, one crystal glass, two credit cards, driving license, cash Rupees 3500/- have not been recovered from the applicant. Reliance is placed to the case reported in 2002 P.Cr.L.J 160. Recovery which has been shown in the present case is contrary to the robbed articles, so far the recovery which has been disclosed in the mashirnama are one L.C.D, one registration book, visiting card of Royal hotel, four C.Ds of car tape recorder, bank statement, tiles bills. So far the recovery of mobile Phone Nokia 1112 from the applicant the same has been recovered after 9 days and no purchase receipt has been produced by the complainant. No crime weapon has been recovered from the applicant/accused. Reliance is placed to the cases reported in 2003 SCMR 201, P.Cr.L.J 186 and 1986 SCMR 1175. Admittedly after arrest of the applicant/accused brother of the applicant/accused filed Application u/s 491 Cr.P.C against Ex-Nazim Gambat namely Khalid Hussain Shaikh in which he has disclosed the facts of dispute over the property and the applicant has been involved in this false case due to enmity. No crime weapon has been recovered. The alleged car has also not been recovered from the applicant/accused. From the perusal of record it also shows that the complainant has suppressed the fact that the complainant-driver, owner of Car Khalid Hussain Shaikh Ex-Nazim of Gambat and the applicant/accused Zulfiqar Shaikh are living in the same town Gambat and they are neighbourers and belong Shaikh community. Investigation has been completed, challan has been submitted and the applicant is no more required for investigation. Bail cannot be withheld as punishment on accusation of accused. Reliance is placed to the cases reported in 2001 SCMR 1040, PLD 1989 S.C 585 and PLD 2003 SC 668.

In the existing circumstances the applicant has successfully made out a case of further enquiry which comes within the ambit of Section 497 (2) Cr.P.C.

For the foregoing reasons applicant is admitted to bail on his furnishing solvent surety in the sum of Rs.2,00,000/- (Rupees Two Lac) and P.R bond in the like amount to the satisfaction of trial court.

Learned Advocate for the applicant has prayed for re-investigation of the case, as the case is false and fabricated one and the applicant is innocent in the present case. Applicant can seek remedy from the competent court of law having jurisdiction of re-investigation of the case.

However, the observations made herein above are tentative in nature for the purpose of only disposal of this bail application

JUDGE.

On the perusal of record it reveals that the alleged offence took place on 8.4.2009 whereas the FIR was registered on 11.5.2009. In fact it is true that the FIR was lodged with the delay of one month and three days by Allah Wadhayo who is said to be the driver of Khalid Hussain Shaikh former Nazim of the Gambat Town, for which no explanation has been offered. After registration of the FIR statements of p.ws were also recorded on the next day i.e on 12.5.2009. FIR is silent to the extent that while committing the offence as alleged no harm was forced by any one nor any scratch was caused to the driver of the car. In the FIR details of robbed articles were shown as under:-

i) One Toyota Corrola XLI registration No.ARK-880 Karachi of grab colour, model 2008.

ii) Two C.Ds.

iii) Two Projectors.

iv) One Multimedia.

v) Two Laptop computers.

vi) One Mobile phone Nokia E-90.

vii) One Crystal glass.

viii) Two credit cards.

ix) Driving License of complainant.

x) Cash Rupees 3500/-

xi) One Mobile phone 1112 of Nokia.

The applicant was arrested on 14.5.2009 and after period of 11 days

the I.O prepared one mashirnama of recovery in which he has stated that he has recovered one L-CD, one registration book of Car bearing No.ARK-880 Karachi, visiting card in the name of Royal Guest Hotel, 4 C.Ds of Tape recorder of car, Bank statement related to the car in the name of Khalid Ahmed Shaikh, bills of tiles in the name of owner of car Khalid Ahmed Shaikh and one Mobile phone No.1112 of Nokia worth Rs.2000/-. None from the articles mentioned in the FIR, the robbed articles, registration book has not been mentioned in the FIR. One L-CD has been mentioned in the mashirnama of recovery whereas in the FIR two L-CDs were mentioned, and in the FIR visiting card of Royal hotel, 4 C.Ds of Tape recorder and bills of tiles have not been mentioned.

So far the mobile Phone 1112 Nokia which has been shown in the FIR, the complainant during the investigation has not produced any purchase receipt of such article that who is owner of allege Nokia mobile phone. It is well settled law that the article available in market can easily be foisted upon the accused, therefore it creates doubt that the articles mentioned in mashirnama is contrary to the robbed articles shown in the FIR. In respect of in ordinate delay in lodging of FIR without plausible explanation and non-recovery of crime weapon reliance is placed to the cases reported in 2003 SCMR 201, 2000 P.Cr..L.J 186, 1986 SCMR 1174, . No recovery of weapon crime weapon has been effected from the applicant/accused during 9 days investigation. After arrest of the applicant, his brother filed Cr. Misc. Application bearing No. 102/2009 U/s 491 Cr.P.C before this Court against Ex-Taluka Nazim Gambat Khalid Hussain against whom learned counsel has pointed out that they have dispute with former Taluka Nazim Gambat Khalid Hussain Shaikh over plot No.83 and 53 of block-II deh Khohra and also having other property house No.730 block No.2 and house No.94 and total area of the open plot is 2000 sq.ft and commercial area of the said property and said Khalid Hussain wants to occupy the above plot and wants dispossess the applicant/accused from the said property. The FIR is silent to the extent that the applicant/accused was armed with any weapon. Merely general allegation that five accused were armed with weapons and after period of one month and three days they have not disclosed that the applicant/accused was armed with any weapon which creates doubt in the prosecution story. Nor the alleged car was brought nor any recovered article as alleged were mentioned in the FIR. Even the alleged robbed car has not been recovered from the applicant/accused. Investigation has been completed and the applicant/accused is no more required for any further investigation, the case of applicants fall within the ambit of Section 497 (2) Cr.P.C and it is case of further enquiry.

Learned counsel for the applicant has stated that Ex-Nazim has applied his influence on the police and D.P.O Khairpur is mixed up with Ex-Nazim Khalid Hussain Shaikh. Hence as police has registered the present case with malafide intention in collusion with Ex-Nazim Khalid Hussain Shaikh as he wants live in the property stated above hence he has prayed that D.I.G Larkana Mr. Sanaullah Abbasi be directed to reinvestigate the crime No.36/2009 of P.S Ranipur either himself or he should transfer the same to Mr. Anwar Ali Gopang officiating D.S.P Head Quarters Shikarpur, as in fact the above officers have good reputation and integrity in police department, hence D.I.G Larkana Mr. Sanaullah Abbasi is to reinvestigate the crime No.36/2009 of P.S Ranipur either himself or he should transfer the same to Mr. Anwar Ali Gopang officiating D.S.P Head Quarters Shikarpur and submit such report to this court within 15 days without fail.