ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

                                                Cr.Bail.Appl.No.S- 781 of 2009                                 

           

DATE         ORDER WITH SIGNATURE OF JUDGE

 

                        For hearing.

 

Date of hearing:            02.4.2010.

 

Date of order:               02.4.2010.

 

 

Syed Javed I. Bukhari, Advocate for the applicants.

Mr. Shahid Shaikh, A.P.G.

                                                            =

AQEEL AHMED ABBASI, J-               Being aggrieved and dis-satisfied with the order dated 11.12.2009 passed by learned Vth Additional Sessions Judge, Hyderabad in Sessions Case No.962/2009 whereby the bail plea of the present applicants was declined, hence they have moved the instant bail application U/s 497 Cr.P.C.

                        The brief facts relevant in the instant bail application are that complainant namely Abdul Shakoor s/o Abdul Salam Memon registered the FIR i.e. Crime No.293/2009 at P.S Tando Muhammad Khan on 23.10.2009 at 1750 hours, alleging the offence U/s 459, 392, 34 PPC, having taken place on the same date at about 0330 hours. The allegations contained in the FIR are reproduced hereunder for the sake of brevity and relevancy:-

“On 17.10.2009 at about 3-00 A.M in the night time, three accused persons entered into the house of the complainant and on the pointation of  weapons, robbed cash of Rs.37,000/-, gold ornaments and clothes. It is alleged that culprits were identified by the complainant party. It is further alleged in the FIR that on the resistance of complainant party, the accused fired from pistols with the result, father of complainant namely Abdul Salam sustained in all 18 injuries and PW Ashique received one injury.”

 

                        The investigation was made, accused persons including the present applicants were arrested on 29.10.2009, one of accused namely Jumoo was shown as absconder and challan was submitted in the Court of Judicial Magistrate-II, Hyderabad.

                        It is inter alia contended by learned counsel for the applicants that in the FIR, the date of alleged offence is mentioned as 17.10.2009 at about 0330 hours whereas FIR has been lodged on 23.10.2009 at about 1750 hours by the complainant after delay of about six days which is not explained. According to learned counsel, the present applicants have not been nominated in the FIR, no role has been assigned to them nor any recovery of the alleged stolen articles or any weapon has been affected. It is further submitted that no identification parade has been made in respect of the present applicants and even the statement of complainant has been recorded on 24.10.2009. Learned counsel states that even the complainant had filed affidavit of no objection on the bail application filed by the present applicants before learned Vth Additional Sessions Judge, Hyderabad but the learned trial Judge without considering the merits and taken into consideration the affidavit of no objection filed by the complainant, dismissed the bail application of the applicants. It is further contended that there is nothing on record to show involvement of the present applicants in the alleged crime nor there is any incriminating evidence against the applicants in this regard. He states that the prosecution story besides being false, is doubtful and requires further inquiry. The applicants are behind the bars since the date of their arrest, therefore, entitled to the concession of bail. In support of his contentions, the learned counsel has placed reliance on the following cases:-

1.                  Shammon alias Samandar Vs. The State (2007 MLD 294).

2.                  Ali Gul Vs. The State (2007 P.Cr.L.J 1907).

3.                  Badaruddin and 2 others Vs. The State (2007 P.Cr.L.J 502).

4.                  Faisal Khan Vs. The State (2007 YLR 2613).

                        Conversely, the learned APG in view of the facts and circumstances of the case and no objection by the complainant Abdul Salam who is also present in Court, does not oppose the grant of bail.

                        I have heard both the learned counsel as well as the complainant present in Court. On bare perusal of the contents of FIR as well as material available with the prosecution, it appears that the present applicants have made out a prima facie case for grant of bail as neither any direct role has been assigned nor identification parade has been made. Moreover, no recovery has been affected and there is also delay of about six days in lodging of the instant crime. Complainant himself has also sworn affidavit of  no objection. Under the circumstances, the case of prosecution cannot be termed as free from doubts hence requires further inquiry. In view of hereinabove facts and the case law relied upon by learned counsel for the applicants, the applicants vide short order dated 2.4.2010 were admitted to bail subject to furnishing surety in the sum of Rs.50,000/- each with P.R Bonds in the like amount to the satisfaction of the trial Court with direction that if the applicants/accused misuse the concession of bail, the trial Court shall be at liberty to initiate the proceedings for canceling the bail of the applicants according to law. These are the reasons for such short order. Before parting with this order, it is clarified that the observations made hereinabove are tentative in nature and the trial Court shall not be influenced by any such observation and shall decide the case on merits and on the basis of evidence available on record.

                       

Dt:13.4.2010.                                                                                                        JUDGE

 

 

 

 

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