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Petitioner: GHULAM QADIR VS Respondent: STATE
2001 Y L R 623
2001 Y L R 623
[Karachi]
Before Muhammad Afzal Soomro, J
GHULAM QADIR---Applicant
versus
THE STATE---Respondent
Bail Application No.414 of 2000, decided on 20th February, 2001.
Criminal Procedure Code (V of 1898)---
----S. 497---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(2) (3)---Penal Code (XLV of 1860), Ss. 427/148/149---Bail, grant of-- Case of two accused who were acquitted and case of third accused who was granted bail before arrest, were distinguishable from the case of the accused---Accused persons were acquitted or granted bail on the ground that all the eye-witnesses did not support the case of the prosecution against the said accused persons whereas the accused had been implicated by the injured prosecution witnesses in their statements recorded under Ss. 161 & 164, Cr.P.C.---Accused during the course of trial remained fugitive from law and proclamations under Ss. 87 & 88, Cr. P. C. were carried against him---Bail plea of the accused, was dismissed, in circumstances.
Baloo alias Piyar Ali v. State 2000 PCr.LJ 1508; Ibrahim v. Hayat Gul 1985 SCMR 382 and State v. Malik Mukhtar Ahmed Awan 1991 SCMR 322 ref.
Aziz-ul-Haq Solangi for Applicant.
Altaf Hussain Surahio for the State:
ORDER
By this order, I propose to dispose of Criminal Bail Application No.414 of 2000, filed on behalf of the applicant, Ghulam Qadir, arising out of the crime F.I.R. No.79 of 1999, Police Station Chak, for an offence under sections 17/2 and 3, Offences Against Property (Enforcement of Hudood) Ordinance, 1979, and sections 148, 149 and 427, P.P.C. Bail plea of the applicant was dismissed by the learned Vth Additional Sessions Judge, Shikarpur, vide order dated 5-9-2000.
2. The brief history of prosecution case, as narrated in the F.I.R., is that on 20-11-1999 at about 05-00 hours, Mumtaz Ali son of Muhammad Ilyas, by caste Mahar, resident of Andlani Village, Taluka Lakhi Ghulam Shah, lodged his report with Police Station Chak stating therein that he is Munshi at Marvi Petrol Pump, Chak, and Shaman son of Makhno is helper, Ghulam Hyder son of Muhammad Hayat Mahar, resident of Village Andlani, is Chowkidar. During night they all were present in the show-room of the petrol pump when, on 20-11-1999 at about 04-30 hours, they heard commotion coming from western side of show-room. Shaman went outside and in the meanwhile they saw and identified accused Sabir son of Molai alias Moula Bux and Misrani Jatoi armed with Lathi, Haroon son of unknown, by caste Misrani Jatoi, armed with Kalashnikov, Liaquat son of Kumbhar, by caste Shar, duly armed with gun and three unknown accused, whose faces were open, under electric light. Out of these culprits, one was armed with Kalashnikov, second with gun and the third was armed with Lathi. The unidentified culprits were not previously known to them. They had seen the faces of the culprits in electric light and could be identified when brought before them. Accused Sabir caused Lathi blows to Shaman on his head, back side of chest and other parts of body, who fell down by raising cries. The complainant closed the door of show-room, on which the accused broke the glass of window on the western side of the show-room and entered. They cut down three locks of table and robbed cash of Rs.6,000 of different denominations, one radio of two bands valued at Rs.1,000, one calculator valued at Rs.500, one bicycle valued at Rs.3,000 and his national identity card. They remained silent due to fear of weapons and did not go near the accused. The culprits thereafter decamped from the scene of offence, Due. to injuries, Shaman was. bleeding and went unconscious.
Then, while leaving Chowkidar Ghulam Hyder for taking care of injured Shaman Ali, complainant Mumtaz Ali went to Police Station Chak where he lodged his report as above. After usual investigation, the applicant has been sent up to stand trial in the Court of learned Vth Additional Sessions Judge, Shikarpur.
3. Accused Ghulam Muhammad and Muhammad Saleh were charged and tried by the learned Vth Additional Sessions Judge, Shikarpur and they were acquitted vide judgment dated 26-5-2000 while the present applicant, alongwith two others, was shown absconding. Later on, the absconders were sent up to stand trial in the same Court.
4. The bail plea of the applicant was urged on the ground that two co-accused, namely Ghulam Muhammad and Muhammad Saleh were charged and tried and thereafter both of them were acquitted vide judgment dated 26-5-2000 as complainant Mumtaz Ali, injured P.W. Shaman and P.W. Ghulam Hyder had not supported the case of the prosecution at the trial, disclosing that the faces of the accused were snuffled. It has been further argued that co-accused Ghulam Muhammad son of Usman Chachar was also granted bail before arrest by the learned Vth Additional Sessions Judge, Shikarpur vide order dated 11-5-2000 on the plea of affidavits being sworn in by the complainant and eye-.witnesses, exonerating accused Ghulam Muhammad Chachar from the commission of the offence. It has been further argued that name of the present applicant does not find place in the F.I.R. but he was implicated by P.Ws. Ghulam Hyder and Shaman in their statements recorded under sections 161 and 164, Cr.P.C. to be one of the culprits and; in this background, he has requested for grant of bail. Learned counsel has referred to the cases of Baloo alia Piyar Ali v. State (2000 PCr.LJ 1508), Ibrahim v. Hayat (1985 SCMR 382) and State v. Malik Mukhtar Ahmed Awan (1991 SCMR 322) and, in this background, it has been urged that the applicant is entitled to bail despite the plea of absconsion against him. Learned counsel for the State has conceded to the arguments of the learned counsel for the applicant and raised no objection for the grant of bail.
5. I have given my anxious thought to the arguments of the learned Advocates for respective parties and have also perused the record. I feel that the case of the present applicant Ghulam Kadir is distinguishable from the case of the accused namely Ghulam Muhammad and Muhammad Saleh, who were acquitted and co-accused Ghulam Muhammad Chachar, who was granted bail before arrest. So far as the case of Ghulam Mohammad and Muhammad Saleh is concerned, they were acquitted on the ground that all the three eye-witnesses namely complainant Mumtaz Ali, injured P.W. Shaman and P.W. Ghulam Hyder did not support the case of the prosecution during the course of trial and stated that the faces of the culprits were muffled. As far as the accused Ghulam Muhammad Chachar is concerned, he was granted bail on the ground of affidavits worn in by the complainant and two eye-witnesses. From the above statements of the complainant and eye-witnesses it is indicative of the fact that parties have taken a somersault and buried their hatchets and, in consequence thereof, they had given a clear go-bye to their earlier statements, exculpating the applicant from commission of the crime. At present, the evidence against the present applicant is to the extent that he was implicated by the injured P.Ws. Shaman and Ghulam Hyder in their statements recorded under sections 161 and 164, Cr.P.C. respectively. The applicant, during the course of trial, remained fugitive from law and the proclamations under sections 87 and 88, Cr.P.C. were also carried' against him. To me the opinion of the learned State Counsel, Mr. Altaf Hussain Surahio, appears to be perfunctory, irrelevant', and devoid of reason.
6. In the circumstances, the bail plea of the applicant is dismissed. However, the learned trial Court is directed to complete the trial within three months after receipt of this order, failing which the applicant would be at liberty to repeat his bail application.
7. The observations made hereinabove are confined only to this bail application. They are to be considered as tentative in nature by the learned trial Judge insofar as trial of the main case is concerned. The learned trial Judge will decide the main case in accordance with law, uninfluenced by whatever is observed hereinabove.
H.B.T/G-51/K Application dismissed Order accordingly.