2011 PLP 1649 (MLD)

IMAM BUX BALOCH, J.

The facts of the prosecution case as mentioned in the F.I.R. lodged by complainant Gul Khan Gadhi are that he is appointed as Munshi at Bijarani Filling Station, whereas Bhooro and Muhammad Sulleman are helpers there. On the day of incident, i.e. 27-3-2008, complainant party was present at the patrol pump, at about 5-00 p.m., they saw accused Abdul Ghaffar, Shabir armed with T.T. Pistols and three un-identified culprits came there on Jeep. It is further alleged in the F.I.R. that soon after their arrival, accused Abdul Ghaffar challenged to the complainant party and accused Abdul Ghaffar and Shabir took out Rs.50,000 from the box. Thereafter accused went away. After that complainant went to Police Station and lodged the F.I.R. as stated above. Learned counsel for the applicant states that co-accused Shabir Ahmed Bajkani after trial has been acquitted by the learned Sessions Judge, Kashmore at Kandhkot as the witnesses have not supported the prosecution case. He states that the applicant belongs to a political party i.e. Muslim League (Qaid-e-Azam Group) and the complainant is affiliated with ruling party i.e. PPP. He states that due to fear the applicant went undergone and subsequently he was arrested in Crime No.45 of 2008 which was registered by Zubair Ahmed Bijarani brother of the then Taluka Nazim Tangwani and he was granted bail by the . Additional Sessions Judge, Kandhkot vide order dated 21-3-2011. He further contended that it is unbelievable that the applicant who is a Zamindar came in his Jeep and committed robbery at filling station of the Bijarani's. That so many F.I.Rs. have been registered against the applicant and his supporters. He contended that the applicant is entitled for grant of bail in view of acquittal of co-accused. For absconsion of applicant he contended that if otherwise the applicant is entitled for grant of bail mere absconsion would not come in the way of the applicant. Heplaced reliance on the case of Mitho Patafi v. The State 2009 SCMR

299. On the other hand, Mr. Muhammad Iqbal Mahar, learned counsel for the complainant contended that the offence is heinous one as the applicant has committed robbery in a broad day light. He has placed reliance on following case-law: (1) Abdul Ghani v. The State 2003 PCr.LJ 421 (2) Akhtiar and another v. The State 2006 PCr.LJ 828, (3) Abdul Sattar v. The State 2009 PCr.LJ 722, (4) Muhammad Nawaz v. The State 2002 SCMR 1381 (5) Ghulam Mustafa v. The State 2000 PCr.LJ 1253 (6) Sher Ali alias Sheri v. The State 1998 SCMR

190. Mr. Abdul Rasheed Soomro, learned State counsel supports the contention of counsel for the complainant and vehemently opposed the grant of bail. I have considered the submissions advanced at the bar and have gone through the material available on record. Admittedly co-accused Shabir Ahmed has been acquitted after the trial by the Sessions Judge, Kashmore at Kandhkot as/ the witnesses have not supported the prosecution case. In such circumstances, the case of applicant falls under the purview of further enquiry and there is no probability of accused being convicted of any offence on the same evidence. As regards absconsion, if the applicant is otherwise entitled on merits mere absconsion would not come in his way while granting the bail. The case of Mitho Pitafi (supra) is on the same footings in which the honourable Supreme Court has observed as under:-- "(7). According to F.I.R., neither any role has been attributed to the petitioner nor, his presence has been shown at the time of occurrence. Vide order, dated 18-2-2002, co-accused namely Jam Patafi has been released on bail by the learned trial Court but the concession of bail was declined to the petitioner on the ground that he was fugitive from law. Learned High Court of Sindh as well as learned trial Court has rejected the bail of petitioner on account of absconsion and not on merit. It is well-settled principle of law that bail can be granted well accused has good case for bail on merit and mere absconsion would not come E in way while granting the bail. We are, prima fade, of the view that the learned High Court has not appreciated the facts and circumstances of the case in its true perspective while declining bail to the petitioner. (8) For the foregoing reasons, this petition is converted into appeal and the same is allowed. The impugned order, passed by the High Court of Sindh, is set aside and the petitioner is directed to be released on bail subject to furnishing bail bond in the sum of Rs.2,00,000 (two lacs) and P.R. bond in the like amount, to the satisfaction of trial Court." As regards the contention of the learned counsel for the complainant that the applicant has committed a heinous offence it is yet to be determined at the trial after adducing evidence by the prosecution whether a man who having a political affiliation and having own vehicles can commit an offence of robbery in a broad day light. As regards reliance of the learned counsel for the complainant, with due respect the facts and circumstances of the case relied upon by the counsel for complainant are distinguishable from the facts and' circumstances of the instant case. Consequently, the bail application is allowed. The applicant is granted bail subject to his furnishing solvent surety in the sum of Rs.100,000 with P.R. bond in the like amount to the satisfaction of the trial Court. Bail application stands disposed of. N.H.Q./A-80/K Bail granted.