2022 P Cr (PLP)

AFTAB AHMED GORAR, J.

Applicant is present on interim pre-arrest bail granted to him by this Court vide order dated 09.04.2021 in Crime No.36 of 2021 registered at Police Station Sahil under sections 448/34, P.P.C. Today his bail application is fixed for confirmation or otherwise.

2. The brief facts of the case as per FIR lodged by the complainant Ashfaq Ahmed son of Malik Muhammad Fazil on 13.03.2021 at 2030 hours, alleging therein that he purchased a Plot No.53/11, Khayaban-e-Tariq, Phase-VIII, DHA, Karachi. On 12.03.2021, he was in Islamabad and two chowkidars were deployed by him for watch and ward of bungalow. He received information through phone that Kaleem Khan and 12/15 unknown persons came at his under construction bungalow while his chowkidar Umer Ghani was available there and other Moatibar Khan went outside for breakfast, Kaleem Khan along with his accomplices forcibly ousted his chowkidar from bungalow and illegally occupy upon the same.

3. Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated by the complainant due mala fide intention and ulterior motives; that there is an inordinate delay of twenty four hours in lodging of FIR for which no explanation has been furnished by the complainant; that no such incident had taken place and the entire prosecution story is baseless and managed one; that there is a civil litigation pertaining to the suit property between the parties bearing Suit No. 565/2021, which is pending before this Court; that Nazir of this Court was appointed as Commissioner, who inspected the premises wherein he found the applicant is in possession of the property; that co-accused were granted bail by the trial Court vide order dated 17.04.2021, therefore, the applicant is also entitled for same by following the rule of consistency; hence, prayed for confirmation of bail to the applicant.

4. Learned Counsel for the complainant has vehemently opposed the grant of bail to the applicant on the ground that the whole offence was committed at the instance of applicant, which is admitted by the co-accused; that at the time of second visit/inspection of Nazir of this Court, he found that possession of Bungalow is in possession of complainant; that the applicant is a habitual offender, therefore, he is not entitled for any relief.

5. Learned Assistant Prosecutor General, Sindh, has opposed for grant of bail on the ground that applicant has been nominated in FIR with specific allegation; hence prayed for the dismissal of the bail.

6. Heard the arguments of learned Counsel for the parties and perused the material on record.

7. It appears from the record that the incident took place on 12.03.2021 at about 0730 hours and the FIR of said incident was lodged on 13.03.2021 at about 2030 hours, after the delay of about twenty four (24) hours for which no satisfactory explanation has been furnished by the complainant; hence, the false implication of applicant in this case with due deliberation and consultation could not be ruled out. As per FIR, the applicant along with other persons were came at the bungalow of complainant and forcefully occupy the bungalow of the complainant, but on perusal of record reflects that there is a civil litigation pending adjudication in respect of the same subject premises filed by the applicant's wife against the complainant and other persons before this Court, which shows that parties are already in dispute with regard to same subject property. Moreover, section 448, P.P.C. is punishable up to one year and is bailable and section 395 is added by the investigating officer in the charge sheet on the statement of co-accused, who have already been granted post-arrest bail. Under these circumstances, at this stage in view of all aforesaid facts, the case of applicant falls within the ambit of section 497(2), Cr.P.C.

8. Apart from that, co-accused have already been granted bail by the same Judge vide order dated 17.04.2021, hence, undoubtedly, the case of applicant is at par with the case of the said co-accused, therefore, he is also entitled to equal treatment as meted out to the aforesaid co-accused in the eyes of law following the rule of consistency. Reliance in this regard may be placed on the cases reported as Saeed Ahmed v. The State reported as 1995 SCMR 170, Tariq Bashir and 5 others v. The State reported as PLD 1995 SC 34, Muhammad Azam v. The State reported as 2008 SCMR 249 and Muhammad Daud v. The State reported as 2008 SCMR 173.

9. By following the dictum as laid down in the above rulings by Hon'ble Supreme Court, which are applicable in all fours to the facts and circumstances of the present case, I reached at conclusion that the applicant is entitled to concession of bail. Consequently, the interim pre-arrest bail already granted to the applicant vide order dated 09.04.2021 is hereby confirmed on same terms and conditions. Applicant is directed to appear before the learned trial Court on each and every date of hearing without fail.

10. Needless to mention here that the observations made hereinabove are tentative in nature and shall not influence the trial Court while deciding the case of applicant on merits. SA/M-104/Sindh Bail confirmed.