NABI BUX alias NABOO Versus State Syed Madad Ali Shah

ORDER

Overruled.

2. Granted subject to all just exceptions.

3. The applicant who is facing trial before Anti-Terrorism Court at Badin, on the charge of abduction for ransom punishable under sections 365-A, 341,34, P.P.C. read with section 7 of ATA, 1997, through the present bail application, seeks his enlargement on bail.

In support of his request the applicant has filed affidavit of the abductee, namely Mehtab Ali to the effect that the applicant has not kidnapped him, and Muharram the sole eye-witness in the case has also filed an affidavit to the effect that he is the sole eye-witness of the alleged abduction and that the present applicant has not kidnapped the abductee Mehtab Ali and also that Mehtab Ali has not been recovered from the custody of the applicant, and as such the applicant is innocent. Both the deponents, identified by the counsel for applicant, and whose original CNIC are seen and returned, verifies the facts as contained in the affidavits, so also the abductee Mehtab Ali, identified by the counsel for the applicant and whose CNIC is seen and returned, verifies the facts as contained in his above noted affidavit. Complainant Master Mehmood Panhwar the father of the alleged abductee, who is also present in Court and is identified by the counsel for applicant, and whose CNIC has been seen and returned submits that he also has been informed by Muharram the sole witness in this case that he has not seen the applicant either at the time of the abduction or at the time of recovery of the applicant.

Syed Madad Ali Shah, learned counsel for the applicant submits that co-accused Muhammad Rahim has already been granted bail by the trial Court, although as per Mashirnama of recovery the abductee was recovered from the custody of the applicant as well as co-accused Muhammad Rahim. However, since the abductee Mehtab Ali had filed an affidavit before the trial Court at the time of hearing of Muhammad Rahim's bail application, Muhammad Rahim has been granted bail. Learned counsel submits that in view of the above affidavits, and the statements of the complainant, the alleged abductee, and the sole eye-witness, the accused are not likely to be convicted. He also presses for the rule of consistency on the ground that Muhammad Rahim whose name has appeared in the Mashirnama of recovery, as noted above, has been granted bail in view of the affidavit filed by the abductee. The learned counsel, in support of his contention, has relied on a bail order granted of the Honourable Supreme Court in the case of Muhammad Nawaz alias Najia v. The State 1991 SCMR 111 whereby, in view of the affidavits of the prosecution witnesses, who have also verified the contents of such affidavits before the Honourable Court, the accused was allowed bail. He has relied on a Division Bench's judgment of this Court in the case of Javed Ahmed v. The State 2002 MLD 400 wherein the applicant/accused, facing trial for offences under section 365-A, P.P.C. and 7 of ATA, 1997, was granted bail, inter alia, in view of the fact that the complainant, abductee and two prosecution witnesses had ruled out the possibility of commission of the offence as at the hands of accused through their affidavits.

The learned A.P.G. Sindh for the Stare submits that in view of the above noted judgments and in the facts and circumstances as stated above, he is not in a position to oppose the request for grant of bail.

Since the complainant, the abductee and so also the sole eye-witnesses of the alleged incident have categorically stated that the applicant is not involved in the alleged abduction which, though, is inconsistent with their statements under section 161, Cr.P.C. however, in view of such contradictory statements the prosecution case requires further inquiry. We would, therefore, grant bail to the applicant subject to his furnishing solvent surety in the sum of Rs.300,000 (Rupees three lacs only) and P.R. Bond in the like amount, to the satisfaction of trial Court.

It hardly needs any mention that the observations contained hereinabove are merely tentative in nature and shall have no bearing on the trial of the Case.

H.B.T./N-16/K Bail granted.