ORDER SHEET

IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Bail Appln. No. 326 of 2010.

Date	Order with signature of Judge

1. For orders on office objection.

2. For hearing.

10.06.2010.

                        Mr. Faiz Mohammad Larik, Advocate for applicant.

                        Mr. Naimatullah Bhurgri, the State counsel.

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                        Applicants Hussain Bux alias Hussain and Ashique Ali seek bail in crime No. 16/2010 P.S Mirokhan, registered under section 395, 149, 215, 452 P.P.C.

                        Facts of prosecution case are that on 07.02.2010 complainant Abdul Majeed lodged F.I.R with P.S Mirokhan, stating therein that on 25.01.2010, he, his cousin Sabir Ali and nephew Faiz Mohammad after taking meals were sitting in the courtyard of their house.  Complainant has further stated in the F.I.R that he had a licensed repeater and his cousin Sabir Ali has licensed gun of his brother Ameer Ali; both the weapons were lying near to them. At about 11.00 p.m. some persons armed with weapons and open faces entered in the house, the complainant party identified two of them to be Hussain Bux alias Hussain armed with gun and Asghar Ali armed with pistol, while rest of four were not known previously and they were armed with guns. It is also stated in the F.I.R that accused persons over powered the complainant party, accused Hussain Bux alias Hussain robbed licensed repeater and bag of cartridges of complainant and accused Ashique Ali brought gun of Ameer Ali and bag of cartridges, thereafter rest of the four accused robbed ten bags of DAP fertilizer and 2 ½ mounds of grain and loaded it on donkey cart and went away. On the next day complainant party tracked foot prints of accused and lost them on Mirokhan to Kamber road. Thereafter complainant approached father of accused Asghar, namely, Allahdino, appraised him factual position, who demanded Rs.30,000/- as “Bhung” for return of robbed property. The complainant and his witnesses gave Rs.15000/- to Allahdino, on which he returned robbed repeater and licensed gun, but refused to return other property, therefore, complainant went to police station and lodged report against accused.

                        On completion of investigation, the investigating agency filed charge sheet before concerned Magistrate, who sent up the case to leaned Sessions Judge, Kamber-Shahdadkot, and ultimately the case made over to learned Additional Sessions Judge, Kamber, where applicants filed bail application, which has been dismissed vide impugned order dated 30.04.2010, hence this bail application.

                        The learned counsel for the applicants submitted that there is unexplained and inordinate delay of 13-days in lodging the F.I.R and there is also delay of 20-days in recording statements under section 161 Cr.P.C. of prosecution witnesses, which is fatal to prosecution. According to learned counsel for the applicants the applicant Ashique Ali has not been nominated in the F.I.R, nor any identification parade of that applicant has been done during investigation. Learned counsel further contended that recovery of DAP fertilizer, grain and donkey cart has been foisted upon applicants and one Ghulam Sarwar Khokhar filed an affidavit, stated therein that Mashooque Ali purchased one donkey cart from him after this incident.   The learned counsel for applicants further submitted that co-accused Ashique Ali and Allahdino have been granted bail. Learned counsel for applicants referred to 1993 SCMR 550, wherein it is held that when statements recorded by police under section 161 Cr.P.C. after delay and without explanation are to be ruled out of consideration.

                        On the other hand learned State counsel opposed grant of bail on the ground that prosecution witnesses have supported version of complainant and the delay in lodging of F.I.R has been explained by the complainant.

                        I have considered the arguments advanced at the bar and perused the relevant material available on record, and the case law cited by the learned counsel for the applicants. Perusal of record shows that it is un-disputed that there is inordinate delay of 13-days, and the explanation furnished for such inordinate delay appears to be unsatisfactory. Record also reveals that applicant No. 2 Ashique Ali was not nominated in the F.I.R and after his arrest he has not been put into identification test parade. Moreover, statements of prosecution witnesses under section 161 Cr.P.C. were recorded after lapse of 20-days, without offering any explanation for such delay. All above facts makes the case of prosecution one of further enquiry. Learned counsel for applicants has stated at the bar that co-accused Asghar Ali and Allahdino have been granted bail.

                        In view of the above circumstances, the applicants have been able to make out a case for grant of bail. Consequently, the instant bail application is allowed. The applicants are directed to be released on bail on their furnishing solvent surety in the sum of Rs.100,000/- (One lac) each and P.R bond in the like amount to the satisfaction of trial Court. However, observations made hereinabove are of tentative nature and the trial Court may not be prejudiced of such observations. 

                                                                                                            Judge