ALI GUL Versus THE STATE

ORDER

IFTIKHAR MUHAMMAD CHAUDHRY, J.‑‑‑ This petition for leave to appeal has been filed against the judgments, dated 2nd July, 2002 passed by High Court of Sindh, Circuit Bench, Sukkur whereby Criminal Bail Application filed by petitioner has been dismissed.

2. Precisely stating the facts of the case are that on 9th May, 2001 at 10‑00 a.m. one Ghulam Rasool Soomro son of Karim Bukhsh Soomro lodged a report in respect of an incident which took place on 8th May, 2001 at 11‑30 a.m. within the jurisdiction of Police Station, Salehpat, District Sukkur under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance 1979, 13‑D of the Arms Ordinance 1965, 7(iii) of the Anti‑Terrorism Act, 1997, sections 324, 449, 452, 109/34, P.P.C. to the effect that petitioner Ali Gul while armed with T.T. Pistol alongwith about 7/8 persons duly armed with, lethal weapons, came in a vehicle in the Otak of Samo Khan Bhambhro and resorted to aerial firing and caused damage to the vehicles parked over there, bearing No.CK‑9874 double cabin and Suzuki Jeep No.752‑352‑Karachi besides causing injuries with ' Lathis' and 'Butt' blows to Ghous Bakhsh and Shafqat Ali. Out of them latter sustained injuries at his back and shoulder and Ghous, Bakhsh also received injuries at his head. It was stated that accused Mehrab and two unidentified persons from whom one was armed with rifle and another was armed with klashanikov stood over complainant and the rest of the accused abducted wife of Samo Khan Bhambhro namely. Mst. Bakhtawar, aged about 45 years, Mst. Hakeema wife of Yar Muhammad Bahmhro, aged about 25 years, and her son Kazim Ali, aged about one year, and went away by firing to create terror. The culprits also took away Rs.42,000 cash in the shape of different notes and gold ornaments equal to 10 Tola from the house. Motive in the F.I.R. was alleged to be old enmity over the election with Fakir Ghulam Qadir.

3. After registration of the F.I.R. investigation commenced and statedly no one amongst injured were referred for medical examination as such no medical certificate is available on record. During the course of investigation another important development took place i.e. on 13th May, 2001 both the abductees and the minor, named hereinabove, came back to their home. Later on, both the ladies were produced for recording their statements under. section 161, Cr.P.C. followed by statement under section 164, Cr.P.C. on 6th November, 2001. In their statements allegedly they involved the petitioner Ali Gul and others in the commission of offence.

4. It is equally important to note here that Samo Khan Bhambhro whose wife Mst. Bakhtawar was allegedly abducted did not lodge report himself with the police. As far as complainant Ghulam Rasul is concerned, it is stated that he is his 'Munshi'. In the meanwhile, petitioner Ali Gul and two others were arrested but except petitioner remaining were released by the police declaring them to be innocent. However, petitioner approached the Additional Sessions Judge for his release on bail but the request so made by him was turned down on 14‑2‑2002. As such he repeated his request for concession of bail, which has been rejected on 2nd July, '2002 by the High Court of Sindh. Hence this petition.

5. Learned counsel appearing for petitioner argued that petitioner's involvement in the instant case is doubtful in view of the fact that Samo Khan Bhambhro, whose wife Mst. Bakhtawar was abducted, did not lodge report. As far as report lodged by Ghulam Rasul is concerned, it was after delay of about 24 hours for which no explanation has been offered. He further stated that if both the abductees namely Mst. Bakhtawar and Mst. Hakeema had returned home on 13‑5‑2001. their statements should have been recorded immediately by the Police under section 161, Cr.P.C. or by the Magistrate under section 164, Cr.P.C. According to him it is not understandable as to why they were produced before the Police or Magistrate for recording their statements after a considerable delay on 6th November, 2001. Above all there is no medical evidence to substantiate the story put forward by the complainant in the F.I.R., therefore, the petitioner is entitled for grant of bail, by extending benefit of doubt to him at this stage.

6. Mr. Muhammad Rafique Chaudhry, learned Additional Advocate General, Sindh contended that petitioner Ali Gul has been nominated in the F.I.R. and both the abductees Mst. Bakhtawar and Mst. Hakeema had involved him in commission of offence, therefore, learned High Court as well as trial Court had rightly declined concession of bail to him.

7. We have heard the parties' counsel and have also gone through the record so made available before us: It is true that F.I.R. was lodged with the delay of 24 hours by Ghulam Rasool, who is stated to be a Munshi of Samo Khan Bhambhro, whose wife Mst. Bakhatawar was also kidnapped without offering convincing explanation. We are conscious of the fact that merely for the reason that F.I.R. has been lodged with delay, an accused cannot get benefit for his release but if this fact is seen from another important aspect of the case i.e. both the ladies came back to their home on 13‑5‑2001 and they remained silent up to 6th November, 2001 when their statements under section 161, Cr.P.C. before the Police or under section 164, Cr.P.C. before the Magistrate, were recorded. In addition to it, prima facie, we are of the opinion shat if at all an attack was launched by the petitioner alongwith others upon the complainant party, out of whom some of them have sustained injuries then prosecution should have produced medical evidence on record to substantiate the plea. Therefore, we are, prima facie, of the view that under these circumstances petitioner has made out a case for his release on bail because some doubt is visible in the prosecution case and it is well settled that benefit of doubt cannot be extended to any one also except to accused even at bail stage as held by this Court in the case of Amir v. The State (PLD 1972 SC 277).

Thus, for the foregoing reasons, instant petition is converted into appeal and allowed. Petitioner is directed to be released on bail, subject to his furnishing surety bond in the sum of Rs.100,000 (Rupees one lac only) with two sureties and P.R. in the like amount to the satisfaction of trial Court concerned.

Needless to observe that above opinion is tentative in nature and would not influence the trial Court in any manner while disposing of the case finally.

N.H.Q./A‑342/S

Bail granted.