2012 PLP 2677 (YLR)

NAIMATULLAH PHULPOTO, J.

Applicant/accused has applied for post-arrest bail in Crime No.45 of 2012 registered at Police Station, Darri, Larkana against the accused on 3-4-2012 under sections 392, 34, P.P.C.

2. Brief facts of the prosecution case as disclosed in the F.I.R. are that on the day of incident complainant along with maternal cousin Muhammad Aslam and relative Nizamuddin left New Murad Wahan to Resham Galli, Larkana. After finishing work, they were returning back. At 8.00 p.m. they reached outside the house in the street, where they saw three accused persons on the electric light. They were identified as Mujahid son of Muhammad Malook Chandio,

2. Zahid son of Budhal Korai and third unknown. All the accused were carrying TT Pistols. Forcibly motorcycle of the complainant party was stopped. It is alleged that accused snatched motorcycle. Thereafter accused Mujahid robbed two mobile sets from the complainant, and accused Zahid robbed Rs.4000 from P.W. Muhammad Aslam. The unknown accused robbed Rs.400 from complainant. Thereafter, accused persons drove away on the said motorcycle. Complainant went to the Police Station and lodged F.I.R. under the above referred sections.

3. During investigation present accused was arrested and on the conclusion of the investigation challan was submitted against the accused under section 17(3), Offences Against Property (Enforcement of Hadood) Ordinance, 1979. Accused Mujahid filed bail application before the Court of learned Sessions Judge, Larkana mainly on the ground of affidavits filed by complainant and P.Ws Muhammad Aslam and Nizamuddin. Bail application was rejected vide order dated 24-5-2012 thereafter applicant have approached to this Court.

4. Mr. Zulfiqar Hyder Abro, learned counsel for the applicant/accused has argued that complainant and P.Ws have sworn the affidavits before the trial Court in which applicant Mujahid have been exonerated from the allegations. Applicant/ accused is no more required for investigation and case against applicant/ accused is of two versions. In support of his contention, he has relied on the case of Muhammad Najeeb v. State (2009 SCMR 448).

5. Altaf Hussain Surahio, learned State counsel argued that applicant/accused have been nominated in the F.I.R., motorcycle was snatched from the complainant. Affidavits of P.Ws have no value at bail stage. He has opposed the bail application.

6. I have carefully heard the learned counsel for the parties and perused the record.

7. From the perusal of affidavits of complainant and P.Ws it appears that they have stated therein that on 3-4-2012 some unknown culprits had snatched motorcycle and cash and mobiles from them. Complainant has clearly stated in his affidavit that he had not mentioned name of applicant/accused in the F.I.R. In these circumstances, prima facie, this is the case of two versions. Rightly reliance has been placed upon the case of Muhammad Najeeb (supra) in which Hon'ble Supreme Court has been pleased to observe as under:-- "(6) We have considered the contentions raised at the Bar and have also gone through the material brought on record in minute particulars. Though initially petitioner was nominated in the F.I.R. by the complainant as an accused but later on through affidavit he stated that he is satisfied with regard to the innocence of the petitioner and does not want to proceed with the matter. This aspect of the matter has not been taken into consideration by the courts below. We without touching the merits of the case are of the view that case of petitioner is of further inquiry. Accordingly, this petition is converted into appeal and is allowed. Appellant Muhammad Najeed is granted bail subject to furnishing surety in the sum of Rs.2,00,000 (Rupees two lacs) with P.R. bond in the like amount to the satisfaction of the trial Court."

8. For my above stated reasons and while respectfully relying upon the above cited authority of Hon'ble Supreme Court, I hold that prima facie there are two versions of the prosecution case. Bail cannot be refused to applicant/ accused in the circumstances of case as punishment. Prosecution case against the applicant/ accused Mujahid Ali requires further enquiry as contemplated under section 497(2), Cr.P.C. Applicant/accused is admitted to bail subject to his furnishing solvent surety in the sum of Rs.200,000 and P.R bond in the like amount to the satisfaction of the trial Court. Above observations are tentative in nature and the trial Court shall not be influenced at the time of passing final judgment. MWA/M-90/K Bail granted.