1. ' ABDUR RAHMAN FARUQ PIRZADA, J.--- By this order, I propose to dispose of two bail applications viz. Criminal Bail Application No,469 of 2007 on behalf of applicants Shah Nawaz, Muhammad Hayat, Muhammad Nawaz, Sultan, Lateef, Rahib, Ali Nawaz, Hakim, Khamiso and Usman and Criminal Bail Application No,536 of 2007 on behalf of applicant Ibrahim Khalti as they pertain to the same case.
2. In Criminal Bail Application No,469 of 2007 the applicants are on interim pre-arrest bail whereas in Criminal bail Application No,536 of 2007 applicant Ibrahim Khalti is confined in custody. The bail is sought in the case vide Crime No,M-1, Police Station "B" Section, Kandhkot for offences under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and 506/2, 420, 342, 448, 406, 147 148, 149, P.P.C.
3. ' As stated briefly, the prosecution case as per F.I.R. Lodged by complainant Zafar Ali at Police Station, "B" Section Kandhkot on 9-5-2007 at 3-30 p.m. Is that the complainant party owned agricultural lands, which are cultivated by themselves as well as by their Haris. On 31-3-2007 at 7- 30 a.m. Complainant along with Muhammad Haneef and his cousin Abdul Hafeez were present in his Otaq when about 15/16 armed persons came there in a tractor trolly, and were identified. The names of 13 persons including the applicants were mentioned in the F.I.R. Who were said to be armed with guns. Allegedly, the accused persons came on the tractor, which was owned by complainant and had been previously stolen. The accused allegedly controlled the complainant party, and after tying up his hands, accused Shah Nawaz snatched his wrist watch and cash of Rs,450, whereas other accused persons also robbed cash from P. Ws. Muhammad Haneef and Abdul Hafeez. On query by complainant party as to why the accused were committing the offence, they told the complainant party that they wanted to grab their lands, and asked them to put their signatures on the documents pertaining to the lands bearing Survey Nos.370, 361, 357, 106, 161, 166.
4. 406/3432 acres. The complainant party refused to put their signatures, whereafter the accused persons went away on the same tractor, while issuing threats of murdering them, in case they tried to inform the police. Subsequently, the complainant went to Police Station Kandhkot for lodging F.I.R., but the S.I.P. Muhammad Ameen Mazari of Police Station Buxapur who was present at Police Station, Kandhkot, told the complainant not to lodge the F.I.R. As accused Shah Nawaz was his friend and that he would get the Faisla from accused. The complainant requested the Police Officers of Kandhkot for lodging the F.I.R. But they declined to lodge the F.I.R. On the same pretext and the complainant approached D.I.-G. Larkana, but the F.I.R. Could not be registered; thereafter he moved application before the Court of Sessions Judge/Justice of Peace, Kandhkot on whose orders the F.I.R. Was registered.
5. ' Learned counsel for the applicants has contended that the applicants have been falsely and malafidely implicated in the case by complainant, due to previous grudge and enmity on account of their old dispute over the agricultural land. Two civil suits viz. F.C. Suit No,186 of 2004 and F.C. Suit No,98 of 2005 have been filed by applicant Shah Nawaz against the complainant party; defendant No,1 Abdul Majeed in both the cases is stated to be uncle of the complainant Zafar Ali. Both the suits pertain to the same agricultural land as is shown in F.I.R.; and the suits are still pending. It has been further stated that several criminal cases of both the parties against each other were previously registered and are still pending. Learned counsel for the applicants submitted that the complainant approached the learned Court of Session after considerable delay of several days after the incident. However, after the F.I.R. Was registered, proper investigation was conducted by police, and vide report, dated 12-6-2007 by S.P. Investigation, Kashmore at Kandhkot the ease was recommended to be disposed of in false "B" Class. However, District Attorney directed the police to submit challan. No recovery has been effected even from applicant Ibrahim who remained in custody of police for about 15 days. According to learned counsel for the applicants the alleged offence would not fall under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 as the articles which were allegedly robbed away, were totally worth Rs,2,850 and three wrist watches, which amount would be less than the Nisab as defined in the Hudood Law. Even no weapon was recovered from the accused. It has been contended that mere mention of the names of accused in the F.I.R. Would not establish that they were the real culprits.
6. Specially in view of the civil litigation between the parties, which was still going on, there was every likelihood that the applicants were involved in the case due to mala fides and ulterior motives.
7. ' Mr. Ashique Illahi N. Baloch, learned counsel for the complainant on the other hand, argued that applicant Shah Nawaz was Sub-Engineer, WAPDA and is an influential person, as such, F.I.R. Of the complainant could not be registered, as such he had to resort to the course of filing the applications before the Sessions Judge/Justice of Peace. He confirmed that two civil suits filed by applicant Shah Nawaz against complainant party were pending in the Court of Senior Civil Judge, Kashmore, and there were some criminal cases of both the parties against each other which were pending in the Courts. However, he disputed the possession of the lands in question to be with the accused party. He also argued that the same accused persons had previously robbed away tractor of complainant party and they came on the same tractor to the lands viz. Wardat, and committed the present offence. He also argued that the applicants remained absconders in the case, and the challan was submitted under section 512, Cr.P.C., as such they do not deserve the concession of bail.
8. ' Learned State counsel has conceded to the contentions of learned counsel for the applicants, while stating that there was civil litigation between the parties on the agricultural lands as shown in the F.I.R., so also there were criminal cases of both the parties against each other, as such the possibility of false implication of applicants cannot be ruled out.
9. I have carefully considered the contentions of learned counsel for the applicants, learned counsel for the complainant as well as State counsel. As admitted by both the parties, there is civil litigation between the parties regarding the agricultural lands, which are mentioned in the F.I.R. As stated by both the parties, two civil suits filed by applicant Shah Nawaz are still pending in the Court of Senior Civil Judge, Kashmore, and some evidence has also been led in the cases. These civil suits are stated to be in connection with the title of the lands. Apparently there is considerable delay on the part of complainant in approaching the Court of Sessions Judge/Justice of Peace for filing the application. It is significant that after registration of F.I.R. The investigation was conducted by investigating agency, as a result of which the case was recommended to be disposed of in false "B"
10. Class; it is obviously presumable that as a result of investigation the police found the accused persons to be innocent. However, as stated, on the directions of District Attorney, the case was challaned. The fact that during investigation the accused were found to be innocent, would also lend support to the case of applicants.
11. ' On the point of civil dispute pending between the parties, reference may be made to the case of Haji Naseem Gul v. State 2007 PCr.LJ 602 (Karachi), in which pre-arrest bail was confirmed, in view of delay in lodging the F.I.R., particularly when civil dispute was pending between the parties regarding the plot in question, and in such circumstances false implication of accused could not be ruled out.
12. ' In the case of Abid Hussain v. State 2007 YLR 1177 it was held as under:-- "It appears that there is a dispute about the property between the petitioner and the complainant and both of them are resorting to criminal action in order to settle their civil dispute. Co-accused of the petitioner, who were six in number, have already been allowed post-arrest bail by this Court vide order, dated 30-10-2006, as aforementioned. As already stated elsewhere, the possibility that F.I.R. Had been registered in order to resolve the civil dispute cannot outrightly be rejected."
13. ' Learned counsel for the applicants has relied upon the case of Ghulam Murtaza Qureshi v. State as reported in 1990 PCr.LJ 323 (Karachi), in which it was laid down that mere mention of name of a person in F.I.R. Would not justify rejection of his prayer for anticipatory bail without considering other ingredients required to be taken into view in this context.
14. ' The reliance was also placed by learned counsel for applicants on the case of Ghulam Abbas v.
15. State 1990 PCr.LJ 945 in which the accused was admitted to bail, on the ground that although the accused was named in the F.I.R. But Investigating Officer found him innocent during investigation.
16. ' The reliance has also been placed by learned counsel for the applicants on the case of Munoo alias Manthar and 3 others v. State 2006 YLR 3088 (Karachi), according to which bail was granted in the case of robbery when nothing was recovered from the possession of the accused persons which showed that only vague allegations were made against them for participating in the commission of the crime. On the same point case of Abdul Ghani v. State 1986 SCM R 1176 has been relied upon wherein in the case under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, accused were directly charged in F.I.R., but the crime weapon was not recovered from the accused.
17. ' According to the case of Meenhal and others v. State 2007 M LD 214 (Karachi), for offence under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, no recovery of stolen motorcycle or any weapon was made from the accused despite they remained.
18. In custody for about 12 days and such circumstances militated against reasonableness of the grounds put forward by the prosecution for believing the applicants guilty of the offence and the matter required further enquiry as contemplated by section 497(2), Cr.P.C.
19. ' Learned counsel for the complainant relied upon the cases as reported in 2004 SCMR 1375, 2005 PCr.LJ 1025, 2003 SCM R 68 and 2000 SCM R 1599. With profound respect for the above cited authorities, I am of the humble view that the same authorities of law are on different facts and circumstances from those contained in the present case.
20. In view of the foregoing discussion, I am of the considered view that the applicants are entitled to concession of bail. In Criminal Bail Application No,469 of 2007 interim bail earlier granted to applicants Shah Nawaz, Muhammad Hayat, Muhammad Nawaz, Sultan, Lateef, Rahib, Ali Nawaz, Hakim, Khamiso and Usman is hereby confirmed on the same terms. In Criminal Bail Application No,536 of 2007 applicant Ibrahim Khalti is allowed bail subject to his furnishing surety in the sum of Rs,50,000 and P.R. Bond in the like amount to the satisfaction of the trial Court.