IN THE HIGH COURT OF SINDH AT KARACHI

 

                          Cr. Bail Application No.1002 of 2012

 

Date

Order with signature of Judge

 

1.For orders on office objection and reply of Advocate at flag ‘A’

2.For Hearing.

 

Date of hearing    : 24.10.2012

Date of order       : 24.10.2012

 

 

          Mr. Muhammad Irfan, advocate for the applicants

Mr. Irfan Hasan, advocate for the complainant

Mr. Muhammad Iqbal Awan, APG

Applicants Malik Muhammad Hayat and Hakim Ali are produced in custody from jail

                                    -----------

 

 

O R D E R

 

Aqeel Ahmed Abbasi, J:  Being aggrieved and dis-satisfied with the order dated 25.09.2012 passed by the learned 1st Additional Sessions Judge, Karachi West in Bail Application No.1171 of 2012 in Crime No.434/2012 under section 392/427/34 PPC registered at P.S. Surjani Town, whereby bail of the applicants was rejected, the applicants approached before this court under section 497 Cr.P.C seeking their release on bail subject to furnishing surety.

2.       Brief facts of the prosecution case are that complainant lodged the report on 16.9.2012 at 1620 hours, in which he stated that he is doing his personal business of “BHOSI TUKRAY” on his Suzuki No. CC-2664. On 15.9.2012 at 2230 hours (night), where he was going back to his home from Bhens Colony and reached at Marbal Factory turning, then 4 persons came there on motorcycles number not known and stopped him, he know them as (1) Malik Hayat (2) Waqas (3) Hakim Gujjar and (4) Anwar Magsi. They snatched his Rs.33,300/- cash, one Nokia Mobile phone No.0312-8366271 and one Wrest Watch Seiko from him on gun point they also damaged the glasses and body of above number Suzuki and fled away.

         

3.       Notices were issued to learned APG as well as complainant, pursuant to which Mr. Irfan Hassan, advocate has shown his appearance on behalf of the complainant.

4.       Learned counsel for the applicants argued that the applicants are innocent and have been falsely implicated in the instant crime at the behest of complainant, with whom there is previous enmity. It is further stated that neither the applicants were arrest from the spot nor after their arrest any recovery whatsoever has been effected from them. Per learned counsel, neither alleged robbed articles nor the weapon which was allegedly used in the offence has been recovered inspite of their arrest. Per learned counsel, the applicants are of advanced age who are respectable citizens of the area, who are running their Cattle Farm for the last many years. Several complaints have been filed by the applicants against some unscrupulous persons for the theft of their buffelows for collection of Bhatta, particularly against one Sultan Burfat and Hafiz Ahmed, whereas complainant of the instant FIR is related to them. Learned counsel has referred to various applications addressed to the concerned SHO and also to FIR No.380/12, which was got registered by applicant Malik Muhammad Hayat against the above named accused persons to show the previous enmity. It has been further stated that infact the prosecution submitted final report for disposal of the case in “A” class, wherein I.O. observed that the case has been registered in view of the previous enmity, as the cases are registered against both the parties, whereas witnesses have not supported the case of the complainant. Per learned counsel, case is of further inquiry, therefore, applicants may be released on bail. In support of his contention, learned counsel has placed reliance on the following judgments:

1.       Syed Arshad Ali Shah Bukhari v. The State 2011 SCMR  1644.

 

2.       Ali Ahmed v. The State 2007 YLR 1144

3.       Muhammad Anis v. The State PLD 2008 Karachi 1

 

5.       Conversely, learned counsel for the complainant has opposed the grant of bail to the applicants and has stated that the applicants have been nominated in the FIR with specific role, whereas no direct previous enmity with the complainant is established on the record. Per learned counsel, the applicants are not entitled to be released on bail.

6.       Learned AP.G, after perusal of record has supported the case of the applicants and submitted that in view of final report submitted by the prosecution for disposal of the case in “A” class, and no recovery of the alleged robbed articles or weapons from the possession of the applicants the case of the complainant has become doubtful. It is further stated that neither any alleged empties have been recovered from the place of incident nor Suzuki Car, which was allegedly broken in the alleged incident has been cited as case property.

 

7.       I have heard the learned counsel for the applicants, complainant as well as learned APG and perused the record of the case. On tentative assessment of the record and keeping in view the final report submitted by the prosecution for disposal of the case in “A” class, and no recovery either of the alleged robbed articles or weapons from the applicants, the case of the prosecution cannot be treated as free from doubt. I am of the view that the case of the prosecution requires further inquiry, whereas the ratio of the case laws relied upon the by the learned counsel for the applicants are attracted in the instant case.

8.       Accordingly, applicants namely, Malik Muhammad Hayat son of Bahadur Khan and Hakim Ali son of Haji Muhammad Ismail are admitted to bail subject to furnishing surety in the sum of Rs.1,00,000/- (Rupees One Lac) each and P.R. Bond in the like amount to the satisfaction of Nazir of this Court.

 

9.       Needless to observe that the observations made hereinabove are tentative in nature and the learned trial court shall not be prejudiced by any such observations and shall decide the case on merits in view of the evidence available on record.

 

                JUDGE