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Petitioner: GHULAM NABI VS Respondent: THE STATEHonorable Justice Sarmad Jalal OsmanyMuhammad Jameel,THE STATE,Fazalur Rehman Awan
2003 P Cr
2003 P Cr. L J 830
[Karachi]
Before Sarmad Jalal Osmany, J
GHULAM NABI---Applicant
Versus
THE STATE---Respondent
Criminal Bail Application No.1235 of 2002, decided on 17th October, 2002.
Criminal Procedure Code (V of 1898)---
----S. 497(2)---Penal Code (XLV of 1860), Ss.382/394/395/34---Bail, grant of---Further inquiry---Delay of about 16 hours in lodging F.I.R. had not been explained by prosecution though Police Station was only 1 Km. away from the place of incident---Some dispute existed between the parties over ownership of buffaloes in question---Recovery of said buffaloes was made from the road side which had cast shadow of doubt upon prosecution version---If buffaloes were stolen those would have been kept in some safe place and should not be left roaming on the road side---No identification test was carried out though all the accused were strangers to the complainant party---Case being of further inquiry, accused was admitted to bail.
Muhammad Jameel for Applicant.
Fazalur Rehman Awan for the State.
ORDER
Brief facts of the matter per F.I.R. No.78 of 2002 lodged with police Station Shah Latif Town, Karachi, on 20-3-2002 at 22-15 hours are that on the same day at 5-45 hours the complainant alongwith Mazhar Hussain was going towards Market (Kamela Mandi) with three buffaloes in order to sell them on the direction of their owner. When they reached at Mariam Manzil near P.M.T. Road, 4 armed persons viz. 3 with weapons and 4th with stick stopped them and told them that the buffaloes belonged to them, which was denied by the complainant. Then out of these 4 armed persons, who appeared to be Sindhi aged about 40 to 45 years, one hit the complainant with the Butt of his rifle on the head and took them alongwith the buffaloes to some bushes near Railway Colony, where their three other accomplices were also present and they kept them in a ditch. Thereafter the accused took the buffaloes with them and told the complainant not to move from the bushes. After a while the complainant and Mazhar Hussain came out from the ditch and went to the owner's house at Cattle Colony, Road No.7 and informed him about the incident. Thereafter they searched for the buffaloes but without success and hence the complaint.
In the foregoing circumstances learned counsel has firstly submitted that the incident admittedly took place at 5-45 hours in the morning whereas the report was filed on the same day at 22-15 hours in the night after the delay of almost 16 hours. This has not been explained by the prosecution at all since the concerned police station was only 1 Km. away from the area where the incident took place.
Learned counsel has further submitted that the recovery was made on the same day at 23-15 hours in the same area i.e. Cattle Colony from the road side which causes some doubt in the matter since if the buffaloes were stolen they would have been kept in some secure place and would not be left roaming on the road side. Finally learned counsel has submitted that per the F.I.R. the accused were totally unknown to the complainant party and hence there should have been some identification test. This has not been done, therefore, this case becomes one of further inquiry. Hence he prays for grant of bail.
The learned State Counsel does not oppose the grant of bail mainly on the ground that the recovery casts some doubt in the matter.
I have heard both the learned counsel for the applicant as well as learned State Counsel. It would be seen that the delay has not been explained by the prosecution although the police station was only 1 Km. away from the place of incident. Similarly per the F.I.R. itself it appears that there were some dispute between the parties over the ownership of the buffaloes in question. So also it would be seen that the recovery was made from the road side in which event a shadow of doubt is caused upon the prosecution version since if the buffaloes were stolen they would have been kept in some safe place and should not be left roaming on the road side. Finally it would be seen that no identification test was carried out although all the accused were strangers to the complainant party.
For the foregoing reasons I am of the opinion that this is a case of further inquiry. Accordingly the application is allowed and the applicant is admitted to bail subject to his furnishing solvent surety in the sum of Rs.50,000 and P.R. Bond in the like amount to the satisfaction of the trial Court.
The application stands disposed of.
At this stage Mr. Muhammad Jameel, Advocate has submitted that the other co-accused viz. Shabbir Ahmad and Habibullah have not filed their bail application because they cannot afford the expenses of counsel being very poor persons. He, therefore, offers his services voluntarily to the said accused and prays that if they may be produced in Court on the next date of hearing he would consult them.
Order accordingly. Let the above co-accused be produced by the jail authorities on the next date of hearing.
To come up on 25-10-2002.
H.B.T./G-133/K????????????????????????????????????????????????????????????????????????????????????????????? Bail granted.