Behram Jakhro and 7 others vs The State

ORDER

AFTAB AIIMED GORAR, J. The applicants booked in FIR No. 203/2022 under sections 365- B/364/344/147/148/149 P.P.C. registered with Police Station Thatta, were admitted to pre-arrest bail vide order dated 19.09.2022 in Crl. Bail Application No. 1844 of 2022 and 20 09.2022 in Crl. Bail Application No. 1849 of 2022 and today both the matters are fixed for confirmation of said pre- arrest bail or otherwise.

2. Learned counsel for the applicants while reiterating the grounds mentioned in the memo of bail application submitted that abductee in her statement recorded on 15.08.2022 stated that she was abducted two months ago by four accused person while in FIR the date of incident shown as 01.08.2022. He further submitted that police report filed in respect of application under section 491 Cr.P.C. shows that no such incident has been taken place and after ten days the instant FIR has been lodged at same Police Station. He argued that the case of applicants creates doubt in the prosecution story and call for further inquiry. He argued that after obtaining the pro-arrest bail, the applicants are regularly attending the trial court as well as this court and not misused the concession at pre-arrest bail. Learned counsel for applicants further submitted mat the applicants are innocent and have falsely been implicated in this case. Learned counsel for the applicants submitted that FIR has been lodged with the delay of twenty four days which has not been explained and no specific role of each of the applicants has been assigned in the FIR. They further submitted that no incriminating article has been recovered from the applicants. Lastly learned counsel prayed that the pre-arrest bail granted to the applicants may be confirmed.

3. Learned counsel for the complainant as well as learned Additional Prosecutor General Sindh could not controvert the above submissions of learned counsel for the applicants rather both opposed the confirmation of bail.

4. I have heard the learned counsel for the parties and perused the record.

5. It is an admitted fact that the FIR has been lodged with the unexplained delay of twenty four days and no iota of evidence is available against the applicants; no medical report of abductee is available. Record shows that Application under section 491 Cr.P.C. was filed with the delay of ten days showing the main accused as Behram Jakhro whereas in the FIR Mohib Jakhro has been shown as main accused more over in the said application seven persons have been shown as accused while in FIR there are fifteen persons are nominated. The abductee in her statement recorded on 15.08.2022 has stated that she was abducted about two months ago by four accused person whereas in FIR the date of incident has been shown as 01.08.2022. Record further shows that concerned police has submitted report in response to application 491 Cr.P.C. stating that no such incident has been taken place. All these circumstances more particularly improvements in statements create doubt in the prosecution story and require further inquiry. The guilt or innocence of the applicants is yet to be established as it would depend on the strength and quality of the evidence that will be produced by the prosecution and the defense before the trial Court. This is a pre-arrest bail application. No complaint of misuse of concession of bail or tampering the record has been pointed out. The applicants are regularly appearing in the case before this court as well as trial court.

6. There is no denial to this fact that the superior courts of the country since long have issued guidelines wherein the details of the considerations for the grant of bail and cancellation whereof are highlighted. The Hon'ble Supreme Court while handing down a judgment reported as Shahid Arshad v. Muhammad Naqi Butt (1976 SCMR 360) although found that the bail granting order passed by the High Court is not sustainable in the eyes of law but yet restrained to interfere in such order on the ground that there was nothing to show that the accused had misused concession of bail. In a recent judgment reported as Samiullah v. Laiq Zada (2020 SCMR 1115). the Hon'ble Supreme Court has enunciated the following principles for cancellation/recalling of bail:- i) If the bail granting order is patently illegal, erroneous, factually incorrect and has resulted into miscarriage of justice. ii) That the accused has misused the concession of bail in any manner. iii) That accused has tried to hamper prosecution evidence by persuading/pressurizing prosecution witnesses. iv) That there is likelihood of absconsion of the accused beyond the jurisdiction of court. v) That the accused has attempted to interfere with the smooth course of investigation. vi) That accused misused his liberty while indulging into similar offence. vii) That some fresh facts and material has been collected during the course of investigation with tends to establish guilt of the accused.

7. When confronted, the learned counsel for the complainant so also learned Additional Prosecutor General Sindh to show from the record as to whether the applicants had violated any of the above-said conditions on the basis of which their bail can be cancelled, she had no answer.

8. At bail stage, deeper appreciation of evidence and circumstances appearing in the case are not permitted and only tentative assessment is to be made, however, where accused satisfies the Court that there are reasonable grounds to believe that he is not guilty of such offence, then the Court must release him on bail. Wisdom is sought from the case titled Yar Muhammad v. The State and another reported in 2004 YLR 2230.

9. Keeping in view the above facts and circumstances of the case, the interim pre-arrest bail granted to applicants vide orders dated 19.09.2022 in Crl. Bail Application No. 1844 of 2022 and 20.09.2022 in Crl. Bail Application No. 1849 of 2022 are confirmed on same terms and conditions.

The trial court is directed to decide the matter as early as possible after hearing both the parties and such compliance report be submitted before this court. The instant Criminal Bail Applications stand disposed of.