UMAR Versus State

ORDER

SHAHNAWAZ TARIQ, J.--- Through captioned pre-arrest bail application, applicants Umar Gabol and Israr Gabol have impugned order dated 24.06.2011, whereby their earlier bail application was dismissed by the Court of learned Ist Additional Sessions Judge, Ghotki.

2. The relevant facts spelt out from instant bail application are that complainant lodged FIR on 23.05.2011 alleging that on 21.05.2011, 12 named accused along with 6 unknown persons armed with hatchets and lathis forcibly taken away 40 bags of wheat by tractor and trolley from the land of complainant, hence instant FIR.

3. Learned Counsel for applicant contended that applicants are innocent and have been falsely implicated by the complainant due to ulterior motives as parties are already disputed over matrimonial affairs; that complainant party lodged several FIRs and Direct Complaint against accused party but all cases were disposed of; that complainant has lodged instant FIR with the delay of two days for which no reason has been shown; that all the PWs are close relatives of the complainant and interested; that two co-accused have already granted bail by the trial Court, that if applicants are not granted bail, they will be arrested and humiliated at the hands of police. He relied on the case of Mitho Pitafi v. The State (2009 SCMR 299).

4. Learned APG contended that applicants were granted pre-arrest bail by the trial Court which was dismissed on 24.06.2011 and after 3 years, they have approached this Court for bail, hence they are not entitled for grant of Bail.

5. Heard learned Counsel for the parties supported with case law and perused the record minutely.

6. Indeed, parties are already disputed with each other and previously complainant party had lodged FIRs No.131 of 2009, 119 of 2009 and 47 of 2011 at Police Station, Adil Pur, and Direct Complaint No.705 of 2009, against applicants and their companions, and ultimately all the cases were disposed of in favour of applicants. Complainant has lodged FIR with delay of two days for which no plausible explanation has been furnished. Allegedly incident occurred during the bright day but no independent person from the locality has supported the allegations levelled in FIR. There are general allegations against 12 named and 6 unknown culprits for forcibly taking away 40 bags of wheat and such allegations requires serious consideration and it is for learned trial Court to thrash hold the truth by recording evidence of PWs. Moreover, after grant of interim pre-arrest bail by this Court vide order 01.12.2014, applicants are attending the trial Court regularly and they neither misused the concession of bail nor they frustrated the trial. It is well settled that concession of bail could not be withheld merely on the ground that accused remained fugitive from law if accused is otherwise entitled for grant of bail. In present case applicants were granted interim pre-arrest bail by the trial but later on same was dismissed and since then they neither appeared before the trial Court nor obtained bail for about 3 years. Conversely, co-accused namely Zahoor Ahmed and Subhan on the same set of allegations, have been granted bail by the trial Court and case of applicants is also based on same grounds, hence they also deserve for the concession of bail and their absence from the trial will not defeat their right of bail. In the case of Mitho Pitafi (Supra), the honourable Supreme Court granted bail to accused as their bail was declined by the High Court on the ground that accused remained fugitive from law.

7. Considering the above facts and circumstances, interim pre-arrest bail already granted to the applicants vide order dated 01.12.2014, stands confirmed on the same terms and conditions. Applicants are directed to appear regularly before learned trial Court to face their trial.

8. The observations referred supra are tentative in nature and learned trial Court shall decide the case strictly on merits.

HBT/U-1/Sindh Bail confirmed.