2014 PLP 1319 (YLR)

SHAHNAWAZ TARIQ, J.

Applicant Talib Hussain has approached this Court for post-arrest bail in Crime No.105 of 2013 registered at Police Station Tando Muhammad Khan under section 395, P.P.C., as his earlier application for bail was declined by the court of learned Additional Sessions Judge Tando Muhammad Khan vide order dated 17-7-2013.

2. Brief facts of the prosecution case are that on 12-5-2013 complainant Ghulam Mustafa along with his driver Gulab Kolhi after loading the Melon in the Suzuki pickup of Red Colour KS-7342, went to Hyderabad and after unloading the Melon, when they were coming back in the night on 13-5-2013 at 04:45 a.m. and reached at Phalkara Road near under construction Public School, they noticed six persons out of them three were standing on left side of the road while other three persons were standing on the right side of the road, all having pistols in their hands. The complainant on the head-light of Suzuki identified two accused persons as Talib Hussain (Applicant) and Muhammad Amen alias Karo Thath. One white colour Mehran car was parked there, all the accused aimed their weapons at complainant party and signalled them to stop, due to fear the complainant stopped the Suzuki, meanwhile three accused dragged them out from the Suzuki. The culprits robbed one Q-Mobile and cash of Rs.2900 from the complainant, while his driver was robbed of one China Mobile, thereafter accused Talib Hussain (Applicant), Karo Thath and one unknown accused snatched the Suzuki Pickup and proceeded towards Phalkara, while remaining three accused on show of weapons made the complainant and his driver to sit in the Mehran Car and then left them near Muhammad Shakh Khan Mori and fled away towards Ayoob Kandra side. On the next morning the complainant narrated the incident to Ali Muhammad Sahito and Noor Muhammad Sahito, who along with complainant went to the accused persons, who kept them on false hopes, as such F.I.R. was lodged on 21-5-2013.

3. I have heard the learned counsel for the applicant as well as learned Assistant P.G for the State and gone through the record minutely.

4. Learned counsel for applicant has contended that the applicant is innocent and has falsely been implicated by the complainant and there is eight days delay in lodging of F.I.R. without plausible explanation, which proves the mala fide and ulterior motives on the part of the complainant. He further contended that the complainant party is belonging to ruling party while the applicant is belonging to opposition, therefore, a false story has been cooked up against the applicant only to teach him lesson.

5. Learned Assistant P.G. has opposed instant application and contended that name of the applicant has been mentioned in F.I.R. with specific role regarding commission of the alleged offence and even the snatched Suzuki was also recovered by the police, therefore, applicant is not entitled for grant of bail.

6. In the case of Shehzore and another v. The State, (2006 YLR 3167) has held that under provisions of section 395, P.P.C. alternate punishment i.e. imprisonment for life or imprisonment not less than four years and more than 10 years having been provided, lesser sentence should be considered by the Court in the matter of bail.

7. In the case of Zahid Maseeh v. The State (2012 MLD 814), it has held that when alternate sentence had been provided for the offence then lessor sentence should be considered by the court in the matter of bail.

8. From perusal of record it has transpired that the incident was allegedly committed on 13-5-2013 during night hours at 04.45 a.m while F.I.R. was lodged on 21-5-2013 at 1330 hours against the present Applicant and co-accused by nominating them regarding snatching of cash, mobile sets and Suzuki, but the complainant has not furnished plausible explanation regarding lodging of F.I.R. with delay of eight days merely stating that he informed the incident to the Nekmard and then they approached the accused persons but they kept the complainant on false hopes and then he lodged subject F.I.R. hence the factum of deliberations and consultation could not be ruled out. It is an admitted fact that during the course of commission of alleged offence, the complainant had identified two culprits in the head-light of his Suzuki which proves that accused were already known to the complainant, therefore, he had to approach the concerned police immediately after the incident while the police station was at the distance of 5/6 kilometers from the place of wardat. Apparently the complainant has failed to furnish any plausible explanation or any mitigating circumstances which had averted him not to lodge the F.I.R. with police, apart from the plea that he along with the Nek mard was approaching to the accused for his redressal.

9. From bearing reading of the mashirnama of arrest of applicant Talib Hussain, it has spelt out that on 22-5-2013, police received information that applicant was moving in a Suzuki car, where upon police traced the applicant and when he noticed the police mobile instead of gearing up said car to flee away, but he left the car and started running towards link road and police chased the applicant and he was arrested and during his personal search police recovered a pistol loaded with bullets, but neither the applicant resisted his arrest nor made any firing to escape from the spot.

10. From the perusal of mashirnama of recovery of Suzuki, it is transpired that the snatched vehicle was recovered on 24-5-2013 from the link road Tando Fazal forest, where allegedly the accused persons had hidden the vehicle after snatching from the complainant. At this juncture, the circumstances agitated by the learned counsel for applicant have prima facie made out a case which falls within the ambit of further enquiry, as envisaged under sub clause 2 of section 497, Cr.P.C.

11. Considering the above facts and circumstances, I am of the view that while the alleged offence is punishable with maximum as well as minimum quantum of sentence, the Court may consider the minimum sentence even at the bail stage. Accordingly, the present case is registered under section 395, P.P.C. which is punishable not less than four years beside its maximun punishment, therefore, the applicant is admitted to post-arrest bail upon furnishing surety in the sum of Rs.100,000 (Rupees, One Hundred Thousand only) and P.R Bond in the like amount to the satisfaction of learned trial Court.

12. Accordingly, instant bail application stands allowed in the above terms. MWA/T-6/Sindh Bail granted.