2009 PLP 827 (YLR)

ABDUR RAHMAN FARUQ PIRZADA, J.

This is bail before arrest application moved on behalf of applicant Ghulam Akbar Narejo in case vide Crime No.39/2008 P.S Jamshoro under sections 395, 427, 452 & 34, P.P.C. It has been stated by learned counsel for the applicant that F.I.R. by complainant Mst. Mehtab was registered on 9-1-2008 at 1-30 p.m. at Police Station Jamshoro, on the orders passed by learned Sessions Judge/Justice of Peace, Jamshoro. Allegedly total four accused including the applicant robbed away various articles including Deck, Air Conditioner, iron girders and T.Rs, juicer machine, V.C.D., golden ornaments of Rs.50,000, wooden doors and windows etc. from the house and four shops of the complainant. The articles were allegedly taken away in two trucks. One servant namely Muhammad Ali was also abducted away by accused. The incident was said to be witnessed by several persons of the locality. The learned counsel for applicant has submitted that three co-accused persons viz, Asghar, Murtaza and Muhammad Ramzan have already been granted bail by learned Additional Sessions Judge, Kotri vide order dated 4-2-2008. The case of the applicants stands at par with that of co-accused who were already admitted to bail. Learned counsel has further submitted that during investigation, the allegation with regard to abduction of one Muhammad Ali was found to be false, as such section 364-A, P.P.C. was deleted. Section 395, P.P.C. has been wrongly applied by police in the challan, since totally four persons are mentioned as accused. As per F.I.R, the accused persons had taken the benefit of occasion of assassination of Mohtarma Benazir Bhutto. He has further submitted that alleged abductee Muhammad Ali was actually never abducted by accused persons, nor it has been alleged by the prosecution that Muhammad Ali was taken away by accused and subsequently he was recovered. Learned counsel has stated that as per mashirnama of recovery of robbed articles, the same robbed articles as mentioned in the F.I.R. were recovered from an abandoned graveyard on 22-1-2008. Learned Assistant A.G. has conceded to the grant of bail, on the ground that robbed articles were not recovered from the possession of applicant, and were found lying open in a graveyard from where they were recovered by police. Learned Assistant A.G. has also conceded, as co-accused placed on similar footings to that of applicant have already been granted bail. I have considered the submission made by learned counsel for applicant and learned Assistant A.G. Admittedly the F.I.R. was not initially registered by complainant at police station, but later on an application under section 22-A, Cr.P.C. was moved by complainant before the learned Justice of Peace/Sessions Judge, Jamshoro, who passed the order for registration of F.I.R. ; subsequently the F.I.R. was registered on 9-1-2008. It is significant to note that nothing has been recovered from any of the accused persons, but as per mashirnama of recovery, the robbed articles were found in an abandoned graveyard, from where the same were recovered by police on 22-1-2008. As admitted by the prosecution, the alleged abductee Muhammad Ali was actually not abducted away .by accused persons, as such after due process of investigation. Section 364-A, P.P.C. was deleted. So far as the applicability of section 395 is concerned, prima facie this section will not apply in the present case, since only four persons are said to have committed the alleged offence; as such at the most section 392, P.P.C. may be applicable. However, above mentioned fact in respect of the recovery of robbed articles from an abandoned graveyard, may raise some doubts with regard to the veracity of prosecution case. As per F.I.R. several persons of the locality including one Javed had witnessed the incident. However, as per statement by learned Assistant A.G. the said Javed was not examined by police under section 161, Cr.P.C. Even the statements of other persons from locality (who witnessed the incident as per F.I.R.) were not recorded by police. Moreover as pointed out by learned Assistant A.G. even the statement of complainant's servant Muhammad Ali was not recorded, in respect of the allegation of abduction. In view of the foregoing facts and circumstances, while also keeping in view the rule of consistency, I feel inclined to hold that the case of applicant is fit for concession of bail. Accord?ingly interim bail before arrest, earlier granted to the applicant vide order dated 5-3-2008, is hereby confirmed on the same terms. The bail application stands allowed. H.B.T./G-3/K????????????????????????????????????????????????????????????????????????????????????? Bail confirmed.