IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Criminal Bail Appln. No. D-07 of 2022
Justice Adnan-ul-Karim Memon
Justice Abdul Mobeen Lakho
Applicant: Muhammad Akbar Arain,
Through Mr. Muhammad Afzal Jagirani, Advocate.
Complainant: Muhammad Afzal Arain, A.S.I. Through Mr. Ashfaque Hussain Abro, Advocate
State: Through Mr. Aitbar Ali Bullo, D.P.G.
Date of hearing: 02-08-2022
Date of Decision: 02-08-2022
O R D E R
ABDUL MOBEEN LAKHO, J.- Through this bail application, applicant/accused Muhammad Akbar Arain seeks post-arrest bail in Crime No.06/2022 of P.S. Khanpur, District Shikarpur for an offence punishable under Sections 324, 384, 386, 337-H(2), 427, 148, 149 P.P.C r/w 6 & 7 of Anti-Terrorism Act, 1997.
2. Brief facts of the FIR are that the complainant Muhammad Afzal Arain lodged the F.I.R at P.S. Khanpur stating therein that prior to incident on 02.05.2020, one Muhammad Hanif entered into house of Muhammad Anwar Arain and committed murder of Mst. Sawera Arain by causing her pistol shots and thereafter he also committed suicide; such F.I.R was lodged vide Crime No.68/2020 with P.S. Khanpur against his son Nazim and others and accused persons were demanding "Bhatta" from the complainant. On 12.2.2021 accused persons attacked upon complainant and such F.l.R was also registered vide Crime No.13/2021 at P.S Khanpur by the complainant. It is further alleged in the F.I.R that accused party were extending threats of dire consequences to complainant and demanding rupees ten millions as "Bhatta", to which the complainant refused. The accused party repeatedely/issued threats of dire consequences and demanded "Bhatta" and also to withdraw from the case. As such, on the day of incident on 27.01.2022 when complainant alongwith his gunman, namely, Khan Muhammad and Abdullah proceeded from his house to his mill in Vigo (vehicle), at about 9.30 a.m. when they reached near bus-stop Khanpur, meanwhile two motorcycles came from northern side and accused Arbab Ali, Ghulam Rasool, Muhammad Arib, armed with kalashnikovs were boarding on one motorcycle, while on another motorcycle accused Muhammad Akbar (present applicant) having Kalashnikov and Abdul Jabbar armed with pistol were boarding and on seeing them, all the accused persons started firing upon complainant party with intention to commit murder, but the fire shot of accused hit the vehicle of Complainant. The nearby people were attracted and on seeing them the accused persons escaped away from the scene by boarding on their motorcycles by making an aerial firing in order to create terror and harassment. The complainant party after consultation with each other went to police station and lodged F.I.R to the above effect.
3. Learned counsel for the applicant submits that applicant is innocent and he has falsely been implicated in this case by the complainant due to old enmity between the parties which has been admitted by the complainant himself in the F.I.R; that F.I.R seems to be false, concocted and managed; that both the prosecution witnesses are servants/gunmen of the complainant, therefore, they are interested witnesses; that malafide on the part of complainant party is very clear as they have involved mostly all the members of the same family in this case; that F.I.R is lodged after delay of five hours, though the distance between the place of vardhat and police station is about one kilometer, therefore, due deliberation, consultation for falsely implicating the applicant/accused cannot be ruled out; that there are general allegations of making firing against all the accused including present applicant and no any specific role has been attributed to him and this is case of ineffective firing as none from complainant side has received injury or even any scratch, therefore, the application of Section 324 P.P.C would be determined at the time of trial; that if the accused persons had intention to murder the complainant or any witness, they would have repeated the fire on them but there is no such repetition as the accused persons who were very close to complainant party should have directly fired upon complainant with deadly and sophisticated weapons but none from complainant party received any injury or even scratch though it was said that the complainant had two gunmen with him at the time of alleged incident but none of them had retaliated the firing of the accused person. Learned counsel has further submitted that it is very strange that when the parties were already on inimical terms with each other and complainant had already registered F.I.R against accused persons and the accused party had also registered F.I.R against son of complainant, then how can the accused persons demand "Bhatta" from him; that Section 384 P.P.C is punishable upto 3 years and is bailable and the section 427 is punishable upto two years or fine and is also bailable; that ingredients of Section 386 P.P.C are not attracted in the instant case as no extortion was done but only attempt/demand is alleged, at the most offence would fall U/S 385 P.P.C which is punishable upto two years with fine. Learned counsel further states that the offence involving extortion of money (bhatta) or property fall within subsection (k) of Section 6 of Anti-Terrorism Act, 1997, and its punishment is provided by subsection (h) of Section 7 Anti-Terrorism Act, 1997, which is imprisonment of not less than five years and not more than (ma extend to imprisonment for life) and with fine; and it is settled principle of law that the courts while hearing bail applications not to keep in view the maximum sentence provided by Statutes but the lesser one should be kept in mind; that there is no incriminating article from the possession of applicant; that investigation of case has been finalized, therefore, physical custody of the applicant is no more required for the purpose of investigation. Lastly he has prayed that the applicant is entitled for grant of bail.
4. On the other hand, learned D.P.G. has strongly opposed the grant of bail to the applicant/accused and has submitted that name of the applicant/accused transpires in the F.I.R the applicant/accused alongwith co accused demanded bhatta of Rs.Ten Million from complainant and in case of non-payment of bhatta, extended threats of dire consequence, and thereafter came on main road Khanpur bus stop, fired upon complainant party with intention to kill during which fire shots hit to the vehicle of the complainant which was damaged. He further contended that police during the investigation, visited place of vardat, secured empties of Kalashnikovs and TT pistols, saw damaged vehicle of complainant, took photographs and prepared such mashirnama in presence of two mashirs Aijaz Ahmed Luhar and Mohammad Imran Arain, recorded statements of PWs Abdullah Shar and Khan Mohammad Sethar u/s 161 Cr.PC who have fully implicated the applicant/accused with commission of offence and thereafter on 04.02.2022 I.0 arrested applicant/accused in presence of same set of mashirs from bus stop of Khanpur with mashirnama. He further contended that the offence has taken place on main road Shikarpur-Kandhkot near Khanpur bus stop, therefore, insecurity and terror in the mind of people of locality was created. He lastly contended that case against applicant/accused falls within the prohibitory clause of section 497 Cr.PC and Section 21-D (2) of Anti Terrorism Act 1997 and there is sufficient material available on the record to show that applicant/accused is involved in the commission of offence and if he is admitted on bail, he will abscond away, the charge has recently been framed and it will come on the surface regarding the involvement of applicant/accused when the case proceeds, therefore, at this stage, applicant/accused is not entitled for concession of post arrest bail and same is liable to be dismissed.
5. We have heard learned counsel for the applicant, learned counsel for the complainant and learned D.P.G. and perused the material available on the record.
6. Admittedly it is also the case of in-effective firing as none from complainant side has received injury or even any scratch, therefore, the application of Section 324 P.P.C would be determined at the time of trial, general allegations of making firing have been alleged against all the accused including present applicant and no specific role is attributed to present applicant/accused. It is hard to believe that if the accused persons had intention to murder the complainant or any witness, they must have repeated the fire on them but there is no such repetition though the accused persons allegedly had come very close to complainant's vehicle. It is very strange that when the parties were already on inimical terms with each other and both the parties have registered F.IRs against each other then demand of "Bhatta" becomes a question which requires further inquiry which can only be done after leading evidence.
7. Indeed, after conclusion of investigation, challan has been submitted before the competent court of law, in which present applicant/accused has been shown as arrested accused while other accused have been shown as absconders, therefore, physical custody of the applicant is no more required for the purpose of investigation. Whenever reasonable doubt arises with regard to the participation of accused in the crime or about the truthfullness of the prosecution case, the accused cannot be deprived of benefit of bail and in such a situation it would be better to keep him on bail than in the jail during the trial.
Reliance is placed upon the case of SYED AMANULLAH SHAH versus THE STATE (PLD 1996 Supreme Court 241), relevant portion is reproduced as under:-
“So whenever reasonable doubt arises with regard to the participation of an accused person in the crime or about the truth/probability of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of benefit of bail. In such a situation, it would be better to keep an accused person on bail then in the jail, during the trial. Freedom of an individual is a precious right. Personal liberty granted by a Court of competent jurisdiction should not be snatched away from accused unless it becomes necessary to deprive him of his liberty under the law. Where story of prosecution does not appear to be probable, bail may be granted so that further inquiry may be made into guilt of the accused.”
8. It is well settled principal of law that every accused would be presumed to be blue eyed boy of the law until and unless he may be proved guilty of alleged charge and law cannot be stretched upon in favour of the prosecution particularly at bail stage.
9. From the above all facts, it appears that the case of present applicant calls for further inquiry in terms of section 497(2) Cr.PC. No useful purpose would be served by keeping him behind the bars, thus his further incarceration would not serve any beneficial purpose at this stage. On legal position, the case of applicant comes within the ambit of further inquiry in terms of Section 497(2) Cr.P.C, therefore, he was admitted on bail subject to furnishing solvent surety in the sum of Rs. 100,000/- and P.R bond in the like amount to the satisfaction of learned trial court.
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, prejudice the case of either party before the trial court.
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