ORDER SHEET
IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA.
Cr. Bail Appln. No.S- 46 of 2024.
Date of hearing Order with signature of Judge.
1.For orders on office objection as flag A.
2.For hearing of bail application.
Applicants
(Rahib Ali Bangwar) : Through Mr. Parvez Ali Maitlo, Advocate.
& another
The State : Through Mr. Aitbar Ali Bullo, D.P.G.
Date of hearing : 16.02.2024.
O R D E R.
MUHAMMAD SALEEM JESSAR:- Through this application, applicants seek their admission on pre arrest bail in Crime No.01 of 2024 of P.S B-Section Thul for offence under Section 395 PPC. Applicants filed anticipatory bail application before the Court of Sessions where initially they were granted interim pre arrest bail vide order dated 11.01.2024 and subsequently its confirmation was declined by learned Additional Sessions Judge, Thul vide order dated 17.01.2024, hence this application has been maintained.
2. The facts of the prosecution case are already mentioned in FIR as well as memo of bail application therefore, the same are not required to be repeated here in again.
3. Complainant inspite of notice has chosen to remain absent without intimation. At the very outset learned counsel for the applicants places on record copy of case diary dated 14.02.2024 issued by Civil Judge and Judicial Magistrate, Thul, taken on record. Per diary the applicants after furnishing surety before this court, have joined trial proceedings.
4. Learned counsel submits that the applicants have been made victim by the complainant on account of their friendship with co-accused who have been implicated by the complainant in the FIR NO.163 of 2023 P.S A-Section Thul under Section 302 PPC r/w Section 6/7 ATA. As far allegation against the present applicants is concerned, they have been shown to have allegedly robbed Rs.1000/= and a mobile phone. He submits that case has been challaned but the trial is not seemingly commenced and the applicants have not misused the concession, hence they may be admitted to pre arrest bail.
5. Learned D.P.G opposed the bail application.
6. Admittedly the witnesses shown in the FIR are close relatives of complainant, hence they are interested and partisan whose testimony can not be taken as gospel truth unless it is corroborated by other independent evidence. Besides, it is pointed out that prior to lodgment of instant case, present applicant Rahib Ali himself had filed a Constitutional Petition No.S-05 of 2024 against the brother of complainant which is pending adjudication and fixed before this Court on 25.01.2024, therefore, their false implication can not be ruled out. It is also crucial to note that the incident was reported with inordinate delay of 16 hours for which no plausible explanation has been furnished.
7. Admittedly in all seven persons have been shown involved in this case. However, except the applicants, co-accused Bashoo, Murad Ali, Abdul Rehman, Azam and Riaz have been booked under Crime No.103 of 2023 of A-Section Thul registered for the offence punishable under Section 302 PPC r/w Section 6/7 ATA, hence unless they are arrested, the trial in present case is not foreseeable in near future, hence by keeping the applicants behind bars for an indefinite period will serve no purpose. Punishment provided by the law for section 395 PPC is life or 10 years or not below four years, hence by following dicta laid down by Apex Courts, the lesser punishment is to be considered at bail stage. Hence, in my view case against the applicants requires further enquiry.
9. In view of above, I am of the humble opinion that at this stage, applicants have made out case for grant of bail. Consequently instant bail application is hereby allowed. Interim pre arrest bail granted on 11.01.2024 is hereby confirmed on the same terms and conditions.
8. It is needless to say that the observations made herein able are tentative in nature which shall not influence the trial Court while deciding the case finally.
JUDGE
shabir