ORDER SHEET

IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR.

Crl. Bail Appln.  No.D-761    of  2011

DATE OF HEARING

 

ORDER WITH SIGNATURE OF HON’BLE JUDGE

23.10.2012.

For Hearing.

Mr. Zulfiqar Ali Naich, advocate for the applicant.

Mr. Zulfiqar Ali Jatoi, D.P.G.

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NAIMATULLAH PHULPOTO,J-      Applicant/accused Asghar Ali alias Ghoro seeks bail in crime No.62/2009, registered against accused at Police Station Padeidan, under Sections 365-A, 215, 34, PPC.

                   Brief facts of the prosecution case as disclosed in the F.I.R are that on 28.5.2009 Kamran Afzal lodged F.I.R alleging therein that on 23.4.2009 he alongwith his father Muhammad Afzal and Khalil Ahmed son of Muhammad Ramzan, after offering ‘Fajar’ prayer went for morning walk.  At 0700 hours they reached near Fardo, deh Padeidan, where they saw a car and a motorcycle CD-70 appearing from Bhiria road side and stopped near them.  Complainant party saw six accused persons with open faces, who were armed with deadly weapons.  They were identified to be 1) Abdul Khaliq alias Khakoo Rajpar, 2) Asghar Ali alias Ghoro Phulpoto (the applicant), both armed with Kalashnikovs, 3) Akbar alias Bhooro Kalhoro, armed with Repeater, 4) Mukhtiar alias Phatpal Rind, armed with Kalashnikov, 5) Barkat Ali alias Barkoo Kalhoro, armed with G-3 Rifle, and 6) Sulleman Chandio, armed with Kalashnikov.  All the accused persons challenged to the complainant party and asked them to keep quiet.  After that by show of weapons the accused persons kidnapped Muhammad Afzal, father of complainant and further asked the complainant to make arrangement for the ransom of Rs.20,00,000/- (twenty lacs) for the release of abductee.  It is also mentioned in the F.I.R that the complainant party started search of abductee, during which one Ghulam Qadir Rind, the relative of accused Mukhtiar Rind and one Abdul Hafeez Kalhoro met the complainant and offered that they would get the abductee released from the captivity of accused on payment of ransom of Rs.20,00,000/-, but the complainant expressed inability to arrange such huge amount.  Thereafter, the complainant went to police station and lodged F.I.R. against the accused under the above referred sections.

                   Mr. Zulfiqar Ali Naich, learned advocate for the applicant/accused contended that F.I.R was lodged with inordinate delay, for which no plausible explanation has been furnished.  He further contended that co-accused Ali Akbar, Mukhtiar, Rasool alias Abdul Hafeez and Ghulam Qadir have already been acquitted by the learned Judge, Anti-Terrorism Court, Khairpur under Section 265-K, Cr.P.C.  It is also contended that co-accused Liaquat has been granted bail by the trial Court and case of applicant/accused is identical and requires further enquiry. 

                   Mr. Zulfiqar Ali Jatoi, D.P.G., appearing on behalf of the State, strongly opposed the application.  He has argued that delay in lodging of the F.I.R has been fully explained.  Learned trial Court acquitted co-accused under Section 265-K, Cr.P.C in a hasty manner without considering the prosecution material collected during investigation in this case.  Mr. Jatoi argued that simply it is mentioned in the bail application that co-accused Liaquat has been granted bail by the trial Court, but copy of such order has not been placed on record.  He has also argued that there is sufficient material available on record against applicant/accused to connect him in the commission of the offence.  Rule of consistency would not be attracted in this case.  In support of his contentions he has relied upon the case of Akram alias Akroo v. The State, 2012 P.Cr.L.J 1132.

                   We have carefully heard the learned Counsel for the parties, perused the contents of the F.I.R, 161 Cr.P.C statements of the P.Ws and other material collected by the prosecution during investigation, so also order passed by the learned Anti-Terrorism Court, Khairpur under Section 265-K, Cr.P.C.

                   Applicant Asghar alias Goro has been fully implicated by the complainant in his F.I.R.  P.W Khalil Ahmed and abductee Muhammad Afzal have also implicated applicant/accused in their 161, Cr.P.C statements.  Record further shows that the abductee was recovered from the possession of applicant Asghar alias Goro and others on 28.5.2009 and an unlicensed Kalashnikov was also recovered from the applicant.  Under Section 365-A, PPC, every member of a gang who kidnaps a person for ransom is equally and vicariously liable to the alleged offence.  Learned Judge, Anti-Terrorism Court, Khairpur has acquitted co-accused under Section 265-K, Cr.P.C vide order dated 01.3.2010 for the following reasons :-

          “From very carefully scanning of the record it reveals that the F.I.R of the present incident was not lodged on the very day of incident by the complainant but the same was recorded with delay of more than one month and five days for which no plausible explanation has been furnished by the complainant.  It is an admitted fact that there is enmity in between both the accused and police officials belonging to district N/Feroze and the applicant Ghulam Qadir had filed constitutional petition before the Honourable High Court of Sindh Bench at Sukkur so also criminal miscellaneous application under Section 22-A & 22-B Cr.P.C before the learned Sessions Judge/Justice of Pece, Naushero feroze prior to this incident as referred to above and the higher authorities of police after examining the parties declared that the F.I.R in respect of recovery of abductee was false which need to be disposed of under false B-Class and the police officers involved in the matter be dealt with departmental action.  Therefore, in the peculiar circumstances, I find that the case against both the applicants/accused is not free from doubt, therefore, in such situation there is no probability of the accused being convicted of any offence if the case proceeded against them and if the case further proceeded, the precious time of this court will be wasted and it will be futile trial against both of them.  Accused had a legal right to file application for their acquittal at any stage.  Reliance is placed on the authority reported in “2004 SCMR 1805”.

          The crux of above said position and in view of reasons discussed supra coupled with no objection recorded by the learned SPP appearing on behalf of the State, I have come to the conclusion that both the accused have been falsely involved and implicated by the police in this case due to admitted enmity at the instance of complainant party, therefore, at this stage, I have no option but to acquit both the present accused Ghulam Qadir and Abdul Rasool alias Abdul Hafeez under section 265-K, Cr.P.C.  They are present on bail and their bail bond stand cancelled and sureties discharged.  The application under Section 265-K, Cr.P.C is accordingly allowed.  Let the case against the remaining accused be proceeded in accordance with law.”

 

 

                   Acquittal of the co-accused under Section 265-K, Cr.P.C would not be sufficient to make the applicant/accused entitled for concession of bail on that ground alone.  Perhaps, the learned trial Judge was not properly assisted while he acquitted the co-accused under Section 265-K, Cr.P.C.  It is the settled position of law that Court cannot deprive prosecution of opportunity to produce evidence under the garb of Section 265-K, Cr.P.C.  Power under this section can only be invoked in the cases wherein no probability of convicting the accused exists.  In this case, without examination of the prosecution witnesses acquittal under   Section 265-K, Cr.P.C was recorded by learned trial Judge.  Certainly its benefit shall not be extended to the present accused.  There is huge material available on record against applicant/accused to prima facie connect him in the commission of the offence.  Delay per se in lodging F.I.R is also no ground for grant of bail to the accused.  Moreover, delay has also been explained.  Enmity is also double-edged weapon.  It is the matter of record that the copy of the order granting bail to co-accused Liaquat is not annexed with bail application, hence such ground is not available to the learned defence Counsel, therefore, learned advocate for applicant/accused cannot claim grant of bail on the rule of consistency.  This Court more or less in the identical circumstances in the above-mentioned case of Akram alias Akroo has observed as under :-

          “5.     As far as contention of the learned counsel that there is two months delay in lodging of the F.I.R is concerned, suffice it to observe that it is now well-settled law that in the cases of abduction or kidnapping for ransom invariably the families are held in terror and they always try as long as hope remains alive, to get the alleged abductee released and are therefore quite reluctant to go to police because they fear for life of the alleged abductee.  Therefore delay is a natural phenomenon. 

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9.       Learned Counsel argued that co-accused Akbar has been acquitted and co-accused Ghulam Nabi has been granted bail by the court below.  Both the orders of acquittal as well as order granting bail are annexed with the application and both these indicate that question regarding statement under section 164, Cr.P.C was not pointed out to the Court and moreover both the judgments are based on no opposition by the prosecution.  We are indeed surprised that even in presence of statement under section 164, Cr.P.C. the prosecutors chose firstly not to refer to that statement and secondly gave their no objection.  Therefore, the principle of consistency cannot be attracted in the circumstances.  Moreover, consistency is always attracted when there are judgments of the Courts of equal stature.  If a judgment or an order is of a Court of lower stature it cannot bind the court of higher stature and if judgment/order is by a Court of higher stature in the same hierarchy, if not only has persuasive value but is rather binding.”

 

 

                   In the present case, complainant and alleged abductee have implicated applicant/accused in the commission of the offence.  Prima facie, there is sufficient material to connect the applicant/accused with the alleged offence.  Acquittal of co-accused, namely, Ali Akbar, Mukhtiar, Rasool alias Abdul Hafeez and Ghulam Qadir under Section 265-K, Cr.P.C would not be valid ground for applicant/accused for grant of bail on the rule of consistency, in the above-stated circumstances.  Yet prosecution witnesses have not been examined.  Prima facie, there are reasonable grounds to believe that applicant/accused is involved in the abduction for ransom, we find no substance in the arguments of learned defence Counsel.  Resultantly, criminal bail application is dismissed with direction to the trial Court to decide the case expeditiously.

                    Needless to observe that the above observations are tentative in nature and the trial Court shall not be influenced, in any manner, while deciding the case.

 

                                                                                                JUDGE

 

                                                                   JUDGE

 

Tahir/*