2012 PLP 1340 (YLR)

SALMAN HAMID, J.

Abdul Hafeez, son of Ali Akbar (Applicant) has preferred the present bail application in F.I.R. No.274 of 2010 of Police Station Gulshan-e-Maymar for offences punishable under sections 380, 457, 436, 34 Pakistan Penal Code. According to the contents of F.I.R., complainant lodged F.I.R. when he received information on telephone on 28-10-2011 by Ali Bux, son of Karim Bux and Ahmed that some nine persons, including the applicant came to the house of the complainant when complainant himself was away, took all the household items therefrom, the details of which is mentioned in the F.I.R., and thereafter torched the house. Upon resistance, the chowkidars of the house were tied up. It is also available on record that Nazeer and Bashir, two accused out of nine in the F.I.R., applied for bail and the court below granted both of them bail by appreciating that no specific role is available in the F.I.R. against them. The present applicant also moved bail application before the court below, which was essentially dismissed on the ground that at the time of torching of the house, the Holy Book (Quraan) was desecrated/put on fire by the applicant and, therefore the bail was refused, though it was mentioned therein that the rule of consistency was available. It was argued by the learned counsel for the applicant that it would be evident from the contents of the F.I.R. that it is nowhere mentioned that how and when the fire had been caused to the house. The F.I.R. is also silent as to how household items, which were large in number and bulky, had been taken away. No eye-witnesses are mentioned in the F.I.R. of the incident besides this, it was also argued that the chowkidars, who allegedly reported the matter, are not shown in the challan or till date their 161, Cr.P.C. statements have not been recorded and that the desecration/ burning of Quraan is also silent in the F.I.R. Arguing the ground of consistency, it was mentioned that Nazeer and Bashir having been granted bail, the applicant is also entitled to it inasmuch as that same set of allegations are levelled against him in the F.I.R. as were against them (Nazeer and Bashir). Learned A.P.-G. for the State vehemently opposed the bail application by asserting that the applicant is charged, amongst others, with offence punishable under section 436 Pakistan Penal Code which entails life imprisonment. It was also argued that the witnesses namely Shakeel and Jeelani in their statements have implicated the applicant and other accused. It was also mentioned that independent witnesses Khan Muhammad and Nazeer Ahmed have also in their 161, Cr.P.C. statements mentioned that fire did take place. Learned counsel for the complainant also opposed the bail application on the ground that the applicant was shown absconder in the charge-sheet and he moved bail application upon his arrest. As far as rule of consistency is concerned, it was argued that it was not the case inasmuch as Nazeer was not granted bail on the rule of consistency and that recovery was also made from him and as far as bail to Bashir is concerned, he was also absconder and upon his arrest he applied for bail which was granted at complainant's back though Vakalatnama of complainant in the bail application of Bashir was available on record of the file. It was also mentioned by the learned counsel for the complainant that the applicant is nominated in the F.I.R. and he is one of the accused out of nine. It was also mentioned by the learned counsel for the complainant that bail that has been granted to Nazeer has been challenged by him before this Court in Criminal Miscellaneous Application No.358 of 2010 which is pending. I have heard learned counsel for the parties and have looked into the case file. It an admitted position that two eye-witnesses i.e. Chowkidars of the complainant are not shown in the challan and that such eye-witnesses have also not as of day deposed or corroborated the allegations, as mentioned in the F.I.R. The F.I.R. is also silent with regard to the allegations of taking away entire household items and as to how the same were shifted from one place to another is not clear. Even as of day, no recovery of such huge items has been made from the applicant. It has also come on record that F.I.R. No.188 of 2010 had been lodged by one Ghulam Nabi, father of deceased namely Farooq and in such F.I.R. Complainant was shown as an accused in which present applicant was one of the witnesses. The above events show that the case is not that of first impression and require further inquiry inasmuch as it is yet to come on record as to what happened to the large number of stolen articles/goods and that though it may be true that at bail stage deeper appreciation of evidence is not permissible but at the same time if prima facie case that require further inquiry is made out, the same falls within the meaning of subsection 2 of section 497, Cr.P.C. and in such cases the applicant may be entitled for bail. For what has been mentioned above, the applicant is enlarged on bail subject to his furnishing surety in an amount of Rs.100,000 (one Hundred Thousand) and P.R. bond in the like amount to the satisfaction of the trial Court. This bail application is disposed of in above terms. M.W.A./A-27/K Bail granted.