2017 PLP 381 (YLRN)

SHAHNAWAZ TARIQ, J.

Through captioned pre-arrest bail application, applicant Zamir Hussain and Mohkumdin have impugned order dated 17.08.2013, passed by learned III- Additional Sessions Judge, Mirpur Mathelo, whereby their earlier bail application was declined.

2. Relevant facts narrated in FIR are that on fateful day, applicants duly armed trespassed in to the plot of complainant and on gun point taken away 02 iron guarders and 04 iron TRs, hence instant FIR.

3. Learned Counsel for applicant contended that applicants are innocent and have been falsely implicated in instant crime due to ulterior motives as complainant is already disputed with them on the question of purchase of subject plot, and he pointed out page-37 of file which is photocopy of sale agreement executed between the owner Amir Mehmood and applicant No.2 Mohkumuddin; that previously one Hafeezullah belonging to applicants' party had also lodged FIR No.91 of 2013, at Police Station, Mirpur Mathelo, under Sections 324, 337-A(ii), 337-H(ii), 114, 427, 147, 148, 149, 452, 447, 511, P.P.C. against the complainant party and such case is pending before learned Court of Ist Additional Sessions Judge, Ghotki; that no independent person from the locality came forward to support the allegations leveled by complainant in FIR that complainant has not mentioned that how accused persons taken away two Iron guarders and 04 Iron TRs from the spot; that bail to co-accused Farooq has already been granted by learned trial Court on same grounds; that applicants joined investigation and their statements were recorded, but nothing was recovered from them; that neither applicants have misused the concession of bail nor they have attempted to tamper with the prosecution evidence; that alleged offence does not fall within the ambit of prohibitory clause of section 497(1). Cr.P.C, hence pre-arrest bail granted to applicants may be confirmed. He relied on the case of Shehzore and another v. The State (2006 YLR 3167) and Muhammad Daud and another v. The State and another (2008 SCMR 173).

4. While controverting the above submissions, learned Counsel for complainant contended that case of co-accused Farooque Ahmed to whom bail has been granted by learned trial Court is totally on different footings and present applicant could not claim the concession of bail under the rule of consistency; that names of the applicants with specific role are mentioned in FIR.

5. Learned APG considering the submissions made by learned Counsel for applicants, extended no objection for confirmation of bail.

6. Perusal of the material available on record and consideration of arguments advanced by learned counsel for the parties coupled with case law emanate that parties are already disputed with each other and FIR No.91 of 2013 was also registered at Police Station Mirpur Mathelo, by one Hafezullah Mahar who is belong to accused party against complainant party and such case is sub-judice before the Court of learned Ist Additional Sessions Judge, Ghotki. Indeed, applicant No.2 is claiming to be owner of the disputed plot on the strength of sale-deed duly executed between applicant No.2 and owner of the plot Amir Mehmood on 21.05.2010. Though the incident occurred during bright day in populated area, but no independent person came forward to support the allegations leveled by complainant, and even he has not mentioned in FIR that how accused person taken away 2 Iron guarders and 4 Iron TRs from the place of incident. Even otherwise, no empty was recovered from the spot during the course of investigation, hence allegations require serious consideration. Co-accused Farooq Ahmed has already been granted bail by learned trial Court vide order dated 13.05.2015, against whom same allegations were levelled.

7. In the case of Mohammad Daud (Supra) honourable Supreme Court has observed that co-accused in the case had already been admitted to bail, applicant was allowed bail in view of the rule consistency in the circumstances.

8. The offence punishable under section 395, P.P.C. provided the quantum of sentence not less than four years and not more that 10 years. It is well settled that while examining the question of bail, Court has to consider the minimum aspect of the sentence if for the alleged offence there are maximum and minimum quantum of sentences or fine are provided for the offence in schedule.

9. Perusal of material placed on record reflects that alleged offence does not fall within the prohibitory clause of section 497, Cr.P.C and applicants are also entitled for grant of bail under the rule of consistency and the refusal of bail at this stage will not serve any useful purpose when applicants after grant of bail are regularly attending the trial Court and have not misused the concession of bail nor attempted to tamper with the prosecution evidence.

10. Considering the above facts and circumstances, interim pre-arrest bail already granted to the present applicants vide order dated 27.08.2013, stands confirmed on the same terms and conditions. Applicants are directed to appear before learned trial Court regularly to face their trial. However, learned trial Court would be at liberty to cancel the bail granted to the applicants in case they misused the concession of bail. HBT/Z-2/Sindh Bail confirmed.