2013 P Cr. L J 672

 

[Sindh]

 

Before Abdul Rasool Memon, J

 

MEER MUHAMMAD---Applicant

 

Versus

 

The STATE---Respondent

 

Criminal Bail Application No. S-232 of 2012, decided on 12th June, 2012.

 

(a) Criminal Procedure Code (V of 1898)---

 

----S. 497---Penal Code (XLV of 1860), Ss. 161, 165, 343 & 34---Prevention of Corruption Act (II of 1947), S. 5(2)---Public servant taking gratification other than legal remuneration in respect of an official act, public servant obtaining valuable thing, without consideration, from person concerned in proceeding or business transacted by such public servant, wrongful confinement for three or more days, common intention, criminal misconduct---Bail, grant of---Rule of consistency---Delay in lodging F.I.R.---Allegation against the accused (police-official) and co-accused (police-officials) was that they forcibly snatched cash and mobile phone from the complainant before detaining him in Government quarters for three days and only released him after receiving a bribe---Contentions of the accused were that F.I.R. had been registered after about one year of the incident without any explanation; that co-accused whose case was similar to that of the accused was already released on bail; that during investigation complainant had sworn on an affidavit whereby he exonerated the accused from the commission of the alleged offence, and that mere abscondence of the accused would not disentitle him from bail as his case was one of further inquiry---Validity---Delay of one year in approaching the court for lodging of F.I.R. had not been explained---Case of accused was consistent to the case of co-accused, who had been granted bail despite being shown as an absconder in the challan---Accused was also entitled to the same treatment---Accused was released on bail, in circumstances.

 

Malik Ahmed Awan v. The State 1991 SCMR 322; Ibrahim v. Hayat Gul and others 1985 SCMR 383; Nadeem v. The State PLD 1996 Kar. 490; Sher Ali alias Shery v. The State 1998 SCMR 145; Najeed Gul v. Khalid Khan 1989 SCMR 382; 2008 SCMR 173; Mitho Pitafi v. The State 2009 SCMR 299; Muhammad Ismail v. The State 2006 MLD 435 and Mazhar Iqbal v. the State 2005 PCr.LJ 923 ref.

 

(b) Criminal Procedure Code (V of 1898)---

 

----S. 497---Bail---Delay in lodging F.I.R.---Effect---Such delay ipso facto was no ground for grant of bail.

 

Qazi Manzoor Ahmed for Applicant.

 

Shahid Ahmed Jatoi, State counsel.

 

Date of hearing: 5th June, 2012.

 

ORDER

 

ABDUL RASOOL MEMON, J.---The applicant is booked in Crime No.11 of 2007, registered with A.C.E, Police Station Shikarpur, under sections 161, 165, 343 and 34, P.P.C., read with section 5(2) of Prevention of Corruption Act-II of 1947.

 

2. The case of prosecution is that on 27-11-2007, Circle Officer, ACE, Shikarpur, lodged above F.I.R. pursuant to order of learned Sessions Judge, Shikarpur on the complaint of one Gul Hassan who is social worker and Chairman of Ushr and Zakat Committee, Deh Masti Khan, stating therein that on 10-12-2006, he along with Aijaz Ali Davo Advocate, and Ali Khan Tunio were sipping tea at Garhi Yasin bus stand, when at about 11-00 a.m. accused ASI Khuda Bux Kalwar of Police Station Garhi Yasin, ASI Ghulam Hussain Chaang of Police Station New Foujdrai, ASI Ghulam Murtaza Dall of Police Station Lakhi and P.C. Mir Muhammad Samejo of Police Station Lakho encircled them, abused and forcibly snatched cash of Rs.10,000 from his pocket, one mobile set of Nokia worth Rs.2,500 and thereafter the aforesaid persons illegally detained him in government quarter for three days and after three days released him after receiving bribe of Rs.15,000.

 

3. After usual investigation the police put up the challan against the accused in the Court of Special Judge, Anti-Corruption, Larkana, showing present applicant and accused ASI Khuda Bux and ASI Ghulam Murtaza as absconders. Bail plea of the applicant after his arrest has been declined by learned Special Judge, Anti-Corruption Larkana, vide order dated 5-5-2012.

 

4. I have heard learned counsel for the applicant; learned State counsel and perused the material available on record.

 

5. The learned counsel for the applicant argued that the alleged incident is said to have taken place on 10-12-2006, while the F.I.R. has been registered on 27-11-2007, after about one year and there is no explanation of any sort, furnished by the complainant in his F.I.R. Learned counsel further contended that F.I.R was also registered after moving an application to the Court of learned Sessions Judge after one year. He further contended that co-accused ASI Khuda Bux who was shown absconder in the challan was admitted to pre-arrest bail by the trial Court on 13-10-2010. Learned counsel further added that during investigation complainant sworn affidavit whereby he exonerated the applicant from the commission of the alleged offence and has stated that he has no complaint against present applicant. Learned counsel further contended that for grant of bail to the absconder rule is not absolute that fugitive from law in no circumstances be enlarged on bail, although abscondence does constitute relevant factors when examining question of bail. In support of his contention he placed his reliance on the case of Malik Ahmed Awan v. The State (1991 SCMR 322). Learned counsel further added that if the applicant makes out a case for further enquiry, then mere abscondence will not come in his way. In support of his contention he has placed his reliance on case of Ibrahim v. Hayat Gul and others (1985 SCMR 383), Nadeem v. The State (PLD 1996 Karachi 490), Sher Ali alias Shery v. The State (1998 SCMR 145) and Najeed Gul v. Khalid Khan (1989 SCMR 382). Learned counsel further contended that co-accused Khuda Bux who was also shown absconder in challan was admitted to pre arrest bail by the trial Court and his case is identical to the case of present applicant, therefore, as a rule of consistency the present applisant is also entitled for bail. In this context he has relied on 2008 SCMR 173 and case of Mitho Pitafi v. The State (2009 SCMR 99). He further contended that though the offence is not compoundable but even though the present applicant was exonerated by the complainant during investigation in his statement. In such circumstances the accused were admitted to bail in case of Muhammad Ismail v. The State (2006 MLD 435), and Mazhar Iqbal v. The State (2005 PCr.LJ 923). Learned counsel lastly contended that in the present circumstances, the applicant is entitled for concession of bail.

 

6. The learned State counsel has opposed grant of bail on the ground that the present applicant has remained absconder, therefore, he was fugitive from law and is not entitled to the discretionary relief of bail. Moreover, the alleged offence is against the society and no any leniency may be shown to such culprits.

 

7. It is an admitted fact on record that in the first instance the challan was presented against accused ASI Khuda Bux, ASI Ghulam Murtaza and P.C. Mir Muhammad the present applicant, showing them as absconders. It is also admitted fact on record that vide order dated 13-10-2010, passed by the then Special Judge, Anti-Corruption Larkana, accused ASI Khuda Bux, was admitted to pre-arrest bail, though he was also shown absconder in the challan, therefore, I am of the opinion that the case of present applicant is consistent to the case of co-accused Khuda Bux. Moreover, there is delay in lodging the F.I.R. for about one year, though delay ipso facto is no ground for grant of bail, but in the present circumstances no explanation of any sort has been furnished for such a long delay in approaching to the Court for registration of F.I.R.

 

8. Considering all the above factors, and that co-accused ASI Khuda Bux, whose case is identical to that of present applicant has been admitted to bail before arrest, I am of the opinion that the present applicant is also entitled to the same treatment. Accordingly, the instant bail application stands allowed and the applicant is to be released on bail on his furnishing solvent surety in the sum of Rs.50,000 (Fifty thousands) and P.R. bond in the like amount to the satisfaction of the trial Court.

 

MWA/M-82/K Bail granted.