MUMTAZ ALI vs THE STATE

ORDER

1. ' NADEEM AZHAR SIDDIQI, J.---Applicant Mumtaz Ali Lakhair facing trial for committing robbery of a Qingqi Motorcycle Rickshaw and cash Rs,700 from complainant Azhar Ali Soomro, in Crime No,84 of 2005 of Police Station, Thariri Mohabat, District Dadu, registered under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, seeks bail.

2. ' The learned counsel for the applicant at the very outset pressed the bail application on the sole ground that the complainant Azhar Ali and P.Ws., Zulfiqar Ali and Altaf Ali, both brothers of complainant, have filed their affidavits, wherein they have completely exonerated applicant Mumtaz Ali from the commission of the offence and have given no objection to the grant of bail to the applicant.

3. ' The learned Asstt. A.-G., in view of the affidavit having been filed by the complainant, who is the sole eye-witness of the alleged incident, and the affidavits of P.Ws., giving no objection to the grant of bail to the accused/applicant Mumtaz Ali Lakhair, has also conceded for release of the applicant on bail.

4. ' I have heard the learned counsel for the parties, perused the record made available before me.

5. The learned counsel for the applicant has relied upon the following reported judgments:-

(1) Zafar Iqbal v. The State PLD 2004 K 566;

(2) Muhammad v. The State 2003 M LD 1665

(3) Ali Muhammad and another v. The State SBLR 2002 S 1536

(4) Nabi Dino and another v. The State 1999 M LD 2576

(5) Nooruddin v. The State 2005 M LD 1267 ' In the F.I.R. The names of the applicant is appearing. However, now the complainant has filed an affidavit that he has not given the name of the applicant and the police had given his name in the F.I.R. On their own accord. The effect of the affidavits are that the complainant and P.Ws. Have exonerated the applicant. Now two sets of evidence were in the case, one in shape of statements under section 161, Cr.P.C. And the other is in the shape of affidavits sworn by the complainant and the eye-witnesses. Case being of two versions, question as to which versions was correct, was yet to be decided at the time of trial. Due to two versions the doubt creates and the benefit of doubt will go to the accused. In reported case of Syed Amanullah Shah v. The State PLD 1996 SC 241 the Honourable Supreme Court has held that where doubt arises regarding participation of accused in the commission of crime then it is better to keep accused on bail rather to keep him in jail.

6. Furthermore, due to affidavits of the complainant and the P.Ws. The applicant has made out a case of further inquiry into his guilt. In the reported case of M. Sadiq v. Sadiq PLD 1985 SC 182, the Honourable Supreme Court held that bail can be granted as of right if the officer Incharge of Police or Court comes to a definite conclusion on consideration of entire material that there are no reasonable grounds for believing that accused has committed a non-bailable offence. In all the above reported cases relied upon by the learned counsel the bail was granted to the accused after considering the affidavits filed by the complainant and P. Ws.

7. ' Upon the above discussion, I am satisfied that in view of affidavits filed by the complainant and P.Ws. Resiling from their previous version and exonerating the applicant a reasonable doubt has been created and the case requires further enquiry. At present there are no reasonable grounds to believe that applicant is guilty of an offence punishable with death, imprisonment for life or 10 years, so as to deprive him from the concession of bail.

8. ' The bail application is allowed and the applicant is directed to be released on furnishing surety in the sum of Rs,100,000 and P.R. Bond in the like amount to the satisfaction of the trial Court.