IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Bail Application No. S-282 of 2021
Applicants: Abdul Waheed @ Waheed Khan and another,
Through Mr. Amanullah Luhur Baloach, Advocate.
Complainant: Shoukat Ali Katohar (Absent).
State: Through Mr. Aitbar Ali Bullo, D.P.G for the State
Date of hearing: 06-09-2021
Date of Decision: 06-09-2021
O R D E R
ABDUL MOBEEN LAKHO, J.- Through this bail application, applicants Abdul Waheed alias Waheed Khan and Kundo, seek confirmation of his pre-arrest bail in case, emanating from F.I.R. No.01/2021, registered at Police Station Punhoon Bhatti, District Jacobabad, for offence under Sections 392,504,506(2), 114, 148 & 149 P.P.C. Earlier their bail plea was declined by the learned Sessions Judge, Jacobabad, vide order dated 30.04.2021.
2. Facts of the case as per FIR lodged by complainant Shoukat Ali on 21.01.2021 at 1815 hours, stating therein that the land of accused Waheed Khan is situated adjacent to his land and due to recent rains paddy crops got destroyed, on which accused Waheed Khan used to say that the complainant party was responsible for the same. On the eventful day i.e. 15.12.2020, the complainant loaded 120 maunds paddy on tractor-trolley and he alongwith his brother Liaquat Ali and cousin Suhbat Ali proceeded to sale the same, when they reached near Suhrab Faqir curve at 02-00 pm, five accused persons who were identified by the complainant, came out of a blue color jeep ahead of them, namely, Waheed Khan, Ali Dost, Nisar, Kundo armed with KKs, Ali Murad armed with gun. They on force of weapons committed dacoity of Tractor Messy Ferguson Model 2019 alongwith trolley & 120 maunds paddy and went away by issuing threats of murder to complainant side. After obtaining directions from the Justice of Peace, the complainant lodged FIR of the incident against the accused.
3. Learned counsel for the applicants submits that the applicants are innocent and have falsely been involved in this case due to previous enmity; that there is delay of 36 days in lodgment of FIR without plausible explanation, therefore false implication of applicants cannot be ruled out; that initially the F.I.R was registered for offence U/S 392 P.P.C but later-on Section 395 P.P.C was added in the challan sheet. Learned counsel further submits that all the P.Ws are related to each other and there are common & general allegations against all the accused persons and no specific role is assigned to the present applicants/accused, that the statements of P.Ws have been recorded after a delay of 37 days; that the alleged incident of robbery is yet to be determined by the learned trial court after recording of evidence; that the alleged tractor trolley and blue color jeep used in the crime have also not been recovered; that co-accused Ali Murad has already been granted post-arrest bail by this Court vide order dated 02.08.2021, hence they are entitled for bail before arrest as same role has been assigned to the present applicants/accused; that the offence does not fall within the prohibitory clause of Section 497 Cr.P.C. He has, therefore, prayed for grant of interim pre-arrest bail.
4. On the other hand, learned Deputy Prosecutor General opposed the confirmation of bail stating that the names of applicants are mentioned in the F.I.R. with specific role; that no malafide on the part of complainant or police has been pointed out by the applicants. He has, therefore, prayed that interim pre-arrest bail already granted to the applicants/accused be re-called.
5. On 02.07.2021 Mr. Mazhar Ali Bhutto advocate filed vakalatnama on behalf of the complainant. On the last date of hearing viz. 16.08.2021 learned counsel for the complainant called absent and today he is also called absent, this is interim pre-arrest bail, therefore, cannot be kept pending for indefinite period only to wait for the complainant.
6. I have considered the submissions of learned counsel for the applicants and learned D.P.G. and have gone through the material available on the record and the police file with the assistance of learned Deputy Prosecutor General.
7. A perusal of FIR reveals that:
(i) There is un-explained inordinate delay of 36 days in lodgment of the F.I.R.
(ii) That there is no recovery of alleged stolen property i.e. tractor trolley from the applicants/accused;
(iii) That statements of P.Ws have been recorded after a delay of 36 days of the alleged incident;
(iv) Prima facie the alleged incident of dacoity is yet to be determined by the learned trial court after the recording of evidence;
(v) Blue color jeep used in the crime has not been recovered;
(vi) The co-accused Ali Murad has been granted post arrest bail by this Court vide order dated 02.08.2021 and the case of applicants/accused, Abdul Waheed alias Waheed Khan and Kundo Buledi is identical to the case of co-accused Ali Murad;
8. The above conclusion is based on inquiry conducted thus for, as at this stage only tentative assessment is to be made, the applicants/accused were successful in making out a case of further inquiry. The offence for which the applicants are charged, does not fall within the prohibitory clause of Section 497(2) Cr.P.C; the grant of bail in cases covered under the said provision is rule and refusal is an exception. Reliance is placed in cases of Tariq Bashir v. The State (PLD 1995 SC 34) and Muhammad Tanveer V. The State and another (PLD 2017 SC 733).
9. Accordingly, instant bail application is allowed and ad-interim pre-arrest bail earlier granted to the applicants vide order dated 24.06.2021 is hereby confirmed on the same terms and conditions.
10. The observations made hereinabove are tentative in nature only for the purpose of deciding the instant bail application, which shall not, in any manner, influence the learned Trial Court at the time of final decision of the subject case.
J U D G E