ORDER SHEET
IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANO
1st Criminal Bail Application No. S-742 of 2023
Applicants: Saleem alias Muhammad Saleem Golo and 03 others through Mr. Akbar Ai Bhangwar, Advocate.
The State: Through Mr. Ali Anwar Kandhro, Additional Prosecutor General, Sindh.
Complainant: Muhammad Shareef Golo, through Mr.Bashir Ahmed Channa, Advocate.
Date of hearing : 22.02.2024
Date of Order : 22.02.2024
O R D E R.
Muhammad Saleem Jessar, J.- Through this bail application, the applicants, 1)Saleem alias Muhammad Saleem son of Ali Jan, 2)Muhammad Azeem Khan son of Kareem Bux, 3)Chakar Khan son of Jam Khan alias Achar, and 4)Qurban Ali Khan son of Lal Muhammad Khan, all by caste Golo, seeks their admission on pre-arrest bail in crime No.100/2023, registered at Police Station Bakhshapur, for offence under sections 452, 504, 504/2, 427, 395, 114, 148 and 149, PPC. The applicants preferred anticipatory bail application No.948/2023 before the Court of Sessions Judge, Kashmore at Kandhkot, which after hearing the parties was dismissed by the learned Additional Sessions Judge, Kashmore by means of order 05.09.2023; hence, this bail application has been maintained.
2. As reported, the case has been challaned by the police, which is now pending trial before the Court of Additional Sessions Judge, Kashmore vide Sessions Case No.510 of 2023, re: The State v. Saleem & others.
3. According to the case of prosecution, on 10.05.2022, at about 10.00 a.m., the applicants along with six others, named in the FIR, being armed with Kalashnikovs, pistols, guns, Repeater gun and lathies, intruded in the house of complainant Muhammad Sharif Khan Golo in Village Saad Ali Golo, Taluka Kashmore and on the instigation of applicant Saleem, forcibly took away in their tractor-trolleys the articles viz., 20 Iron Garders, 50 TRs, 20 windows & doors, 05 hand-pumps, 200 mounds of wheat grain, Paddy Seed 20 mounds, other household articles and one Thrasher Machine of paddy. Hence, such FIR was lodged by the complainant on 17.11.2023.
4. Learned counsel submitted that prior to this incident the complainant party had committed murder of one Ashique Ali and had caused injuries to Karim Bux and on 26.04.2022 such FIR bearing No.40/2022 was registered with PS Bakhshapur, under Sections 302, 114, 337-A(i), 33-F(i), 147, 148, PPC by applicant No.2 Muhammad Azeem Khan, in which case the brothers and nephew of the present complainant, Muhammad Inam, Muhammad Ameen and Irshad have been shown nominated accused, who are still at large; however, one accused named Nokhaf was arrested and is in custody. He next submitted that after committing murder of the applicants’ party, the complainant party have shifted away to unknown destination; hence, question of committing robbery of the articles mentioned in the FIR is without justification. He submitted that all the sections applied in the FIR are bailable except Sections 506/2 and 395, PPC, punishment whereof does not exceed the prohibitory clause of Section 497, Cr.P.C. He also submitted that in view of standing enmity between the parties over the murder of Ashique Ali, the complainant party has lodged this false case against the applicants in order to exert pressure upon them so that they may surrender said murder case; hence, the case against the applicants requires further enquiry within meaning of Sub-section (2) to Section 497, Cr.P.C; hence, prayed for confirmation of interim pre-arrest bail already granted to the applicants.
5. Learned Additional Prosecutor General appearing for the State, opposed the bail application, on the ground(s) that applicants have taken away valuable articles valued at more than rupees eight lacs from the house of complainant party on gunpoint, therefore, they are not entitled for the bail. He; however, could not controvert the fact that mode and manner, in which the alleged offence is shown to have occurred, does not appearing to be convincing, more particularly when the complainant party has committed murder of applicants’ side, which case is still pending trial against them.
6. Learned Counsel for the complainant also opposed the bail application and submitted that the valuables of more than 08 lac rupees have been forcibly taken away by the applicants from the house of complainant, therefore, they are not entitled for the concession of pre-arrest bail.
7. Heard learned counsel for the applicants, learned Addl. P.G. for the State as well as learned Counsel for the complainant, and perused the record.
8. Per F.I.R, the incident is shown to have occurred on 10.05.2022, whereas report thereof was lodged on 17.11.2023 i.e. with the delay of more than 06 months, though the distance between the place of incident and the police station is only 6/7 kilometers and no plausible explanation has been furnished by the prosecution for such an inordinate delay. The delay in criminal cases has always been held by the superior Courts to be fatal for the prosecution and in the backdrop of existing murderous enmity between the parties, false implication of the applicants cannot be ruled out. As far as punishment prescribed by the law for the sections applied in the FIR is concerned, Section 506/2, PPC carries maximum punishment of 07 years, whereas Section 395, PPC provides two punishments and per dictum laid down by the superior Courts the lesser quantum of the sentence is to be considered at bail stage. The case has been challaned, wherein the applicants have joined the trial proceedings (vide Sessions Case No.510 of 2023, re: The State v. Saleem & others); hence, they are no more required by the police for the purpose of investigation or interrogation. The arguments advanced as well as the facts urged before the Court today reveal that the prosecution has managed this case against the applicants only to malign their reputation and to exert pressure upon them so that they may not pursue their murder case, in which brothers and nephew of complainant are still at large. Hence, the basic ingredients for grant of pre-arrest bail, as have been laid down by the learned Apex Court in the case of Rana Muhammad Arshad v. The State (PLD 2009 SC 427) are fully attracted in this case. Therefore, I am of the opinion that the applicants have made out good prima facie case for grant of pre-arrest bail within the meaning of sub-section (2) to Section 497, Cr.P.C.
9. Consequently, and in view of above, instant bail application is hereby allowed. Resultantly, the interim pre-arrest bail granted to applicants on 15.12.2023, is hereby confirmed on same terms and conditions.
JUDGE
Qazi Tahir/-