1. ' MUHAMMAD AFZAL SOOMRO, J.--- Through this application, applicants Muhammad Salleh and Yar Muhammad have approached this Court for bail in anticipation of their arrest in case bearing Crime No,44 of 2002 of Police Station Qubo Saeed Khan for an offence under section 17/3 (Enforcement of Hudood) Ordinance, 1979 read with section 215, P.P.C.
2. ' The prosecution story as enunciated in the F.I.R. Is reproduced hereunder:-- "Complaint is that I had my own tractor having registration No,MNW-3316/240 Messy Ferguson of Red colour; which was being driven by me. On 4-11-2002, I along with my relatives Zulfiqar son of Muhammad Nawaz by caste Chandio resident of village Ghulam Muhammad Budhani and my cousin Abdul Nabi son of Gullan, Budhani Chandio, after keeping articles in the tractor were going to the land i,e, Kasho, when we reached at F.P. Bund at about 5-30 p.m. We saw five persons with open faces, one had rifle in his hand and other four had kalashnikiovs in their hands and they were not known to me. They at the force of weapons controlled upon us and robbed the tractor, Rs,5,000 cash from my pocket, one citizen wrist watch from my armpit. They separated trolley from the tractor and went towards eastern side on tractor. Thereafter we returned to our village and took some people of the village in a jeep and followed the wheel tracks of the tractor, which disappeared at Sindh Balochistan Border. Thereafter, we were privately searching about the tractor and came to know that (1) Ali Bux alias Kuro son of Shah Murad Shabrani, resident of Village Dinpur Taluka Kamber, (2) Nazir son of unknown, Mirbahar resident of Balochistan, (3) Bashir son of Passan, by caste Tamnai Chandio, resident of Balochistan, (4) Wajid son of Ali Muhammad, by caste Karo Chandio, resident of village Shahi Khan Chandio, Taluka Kamber, (5) Yar Muhammad son of unknown Magsi, originally resident of Balochistan, at present resident of Bhense Colony Larkana are real culprits. Then I, along with Nekmard Roshan Ali son of Imamuddin Chandio resident of Kamber and my uncle Bashir Ahmed son of Machhi Khan Chandio went to the village of Shabrani which is Dinpur, where we met with Ali Bux alias Kauro Shahbrani and his relatives asked them that since they were involved in tractor robbery, who admitted the tractor robbery and requested us not to lodge F.I.R. And promised to return the tractor through private negotiation.
3. Thereafter, we returned back to our village. On next day, I along with my uncle Bashir Ahmed and Nekmard Roshan Ali went to Bhense Colony, Larkana to accused Yar Muhammad Magsi and his brother Muhammad Salah. Accused Yar Muhammad told that since they had sold the tractor so it cannot be returnea back. Accused Muhammad Salah demanded Rs,50,000 and said that he will get back the tractor. Thereafter we returned back to our village. On the next day, I paid Rs,50,000 to accused Muhammad Salah in presence of P. Ws. Bashir Ahmed and Roshan Ali who said that within 2/3 days the robbed tractor will be returned. Thereafter we were visiting Shabrani's but they later on refused to return the tractor. Yesterday we met with Muhammad Salah Magsi and asked for tractor who informed that tractor is not being returned and also refused to return the amount of Rs,50,000 hence today I have come to police station and report that at the time of occurrence accused Ali Bux alias Kauro Shabrani had rifle in his hand while others have kalashnikovs and the other said persons are real culprits and Muhammad Salah Magsi did not return ransom amount and above accused were stayed at the house of Ghulam Qadir son of Niazal by caste Shabrani resident of Dinpur, Taluka Kamber. I am complainant and request for investigation.
4. ' Details of robbed tractor (1) One tractor bearing No,MNW/240 Massay Ferguson Model 1999, Engine No,45537-E, Chasis No,0780-39, Value Rs,2, 50,000.
(2) Cash Rs,5,000
(3) One Citizen watch, Golden Colour, value Rs,1,000.
5. ' The investigation followed and in due course co-accused Ali Bux was arrested and the names of the applicants were put in Column No,2 of the challan.
6. ' I have heard the learned counsel for the respective parties and perused the record.
7. ' It has been contended by the learned counsel for the applicants that the case against them is false and they had been involved in the background of enmity and suspicion. It has also been contended that the involvement of the applicants in the case of this nature is due to mala fide and ulterior reasons on the part . Of, police in collusion with the complainant party. It has also been contended that there is inordinate delay of 1-1/2 months in lodging the F.I.R. And no plausible explanation is forthcoming. The complainant has also filed his own affidavit before the learned trial Court exonerating applicant Muhammad Sallah from the commission of the offence. The counsel further submits that police with ulterior motives wants to arrest and he will be humiliated, insulted and disgraced by the police. On all these scores it has been contended by the learned counsel for the applicants that it is a fit case where the applicants could be enlarged on bail.
8. ' As against the arguments of the learned counsel for the applicants it has been contended by the learned State Counsel that name of the applicants find place in the F.I.R. According to the learned counsel the specific role of robbing the tractor and thereafter demanding the Bhung money from the complainant has been attributed to the applicants. He further contended that the applicants had remained fugitive from Court and justice for nearly about three years hence has vehemently opposed the bail.
9. I have carefully examined the material available on record. Perusal of the F.I.R. Shows that the allegation against the applicant is of receiving Bhung money which at the most is punishable up to two years. Moreover the complainant Ahmed Bux had filed affidavit in the Court of Sessions Judge exonerating the applicants from the commission of offence, hence in the circumstances of the case ultimate conviction of the applicants has become doubtful. Co-accused Ali Bux alias Karo has been released from the charge. As far as absconsion of applicants is concerned, it is by now well-settled law that .Mere absconsion is no ground to refuse bail to an accused if otherwise he is entitled to bail on merits. On merits, the allegation of receiving Bhung money is attributed to the present applicant Muhammad Sallah, which on the face of it does not come within the prohibition contained in section 497, Cr.P.C. And in view of the affidavit of complainant on record, the case requires further enquiry against the applicants.
10. ' For what it has been discussed above, I am of the considered opinion that applicants have been able to make out a case for bail. They are admitted to bail before arrest provided they furnish solvent surety in the sum of Rs,1,00,000 each and execute P.R. Bond in the like amount to the satisfaction of Additional Registrar of this Court.
11. ' Criminal Bail Application No,66 of 2006 stands disposed of.##TE#