1. ' Through this application, applicants Rasool Bux, Sain Bux and Zainuddin have assailed the Order dated 02.01.2016, passed by learned 1st Additional Sessions Judge, Kandhkot, whereby their prayer for post-arrest bail has been declined in Crime No, 75/2013, registered with P.S. Karampur/Jamal, for offence punishable under Section 395, P.P.C.
2. ' Brief facts as per prosecution are that Complainant Javed Ahmed son of Jalaluddin Choliyani, resident of Village Imam Bux Choliyani, owns CD-70 motorcycle, on 01.08.2013, along with his cousin viz. Sadam Hussain and nephew viz. Habib-ur-Rehman, had gone to Ghouspur Town for some work on their respective motorcycles and on their way back, when they at about 2.00 p.m., reached. At Tangwani Laro, Link Road, near Naseer Shaakh Bridge, Deh Naar, saw and identified Accused Sain Bux, having kalashnikov, Makhno, armed with gun, Zainuddin & Moula Bux, having T.T. Pistols, and Rasool Bux & Illahi Bux with Kalashnikovs, all by caste Choliyani, residents of Village Imam Bux Choliyani, Taluka Tangwani, were standing on road, while two Motorcycles were standing near the road; the accused party signaled the Complainant Party to stop; Complainant Party due to fear of weapons stopped the motorcycle; accused persons aimed their weapons upon the Complainant Party asked them to get down from the Motorcycle, so the Complainant Party got down; the Accused Party robbed the Motorcycle of Complainant and went away on the Complainant's robbed Motorcycle and their Motorcycles. The Complainant Party reached their house; waited for their Nekmards, who when came back, were informed about the same and on their advice lodged the instant F.I.R. On 13.8.2013.
3. ' Police submitted the Challan and applicants are in jail.
4. ' Learned Counsel for applicants contended that the applicant no. parasol bux, is aged about 67 years and grand father of applicant no. 2/sain bux; that complainant and the accused party are caste fellows and residents of same village; that applicants are innocent having been falsely implicated in this case, as there is dispute between the parties over a land; Peerano son of Applicant/Rasool Bux, lodged F.I.R. No, 43/2012, in Police Station Tangwani, under Sections 337-A (i), 337-F (i), 337-H (2), 114, 147, 148, 149, 504, P.P.C., against present Complainant/Javed Ahmed, his father Jalaluddin and his two brothers viz. Bashir Ahmed and Wilayat Ali, so there is an enmity between the parties; copy of said F.I.R is available on record in the matter. Per learned Counsel there is delay of 13 days in lodging the F.I.R. And the P.Ws. Are cousin and nephew of the Complainant, so they are interested witnesses; that no recovery of robbed Motorcycle has been effected from the applicants; Section 395, P.P.C. Provides alternate punishments, so lesser sentence be considered by the Court at the stage of bail; the case of the prosecution is doubtful and requires further inquiry, so the applicants are entitled to bail. In support of his contentions the learned Counsel has relied upon 2009 SCM R 299, PLD 1996 S.0 241, 2006 YLR 3042, 2006 YLR 3164, 20Q7 MLD 214 and 2009 P.Cr.LJ 646.
5. ' On the other hand, learned D.D.P.P., assisted by learned Counsel for Complainant have opposed grant of bail to applicants on the ground that the applicants have been nominated in the instant F.I.R. With specific role of robbing motorcycle from Complainant at gun point; there are witnesses of the offence, who have supported the case prosecution in their Statements recorded under Section 161, Cr.P.C. During course of investigation; and delay has been explained and the applicants were absconders. The Counsel for the Complainant has relied upon 2013 YLR 891, 2012 YLR 1314, 2010 YLR 542 and 464.
6. ' Heard the arguments, gone through the material available on record and precedents.
7. ' Alpert of record shows that there is delay of about thirteen days in lodging the F.I.R, and explanation furnished for such inordinate delay is not satisfactory and plausible. It is the claim of the Complainant Party that the applicants were identified by them on the spot; they belong to same caste and are residents of the same Village, then why Complainant remained silent .For 13- days and did not lodge the F.I.R. Promptly; this ground alone makes the case of prosecution doubtful. Further, the parties are already on inimical terms with each other over the immovable property, which fact is borne out from the F.I.R No, 43/2012, of P.S. Tangwani, copy of the same is available in the matter and the said F.I.R. Was lodged by one Peerano the son of applicant/Rasool Bux, against present Complainant viz. Javed Ahmed, his father Jalaluddin and his two brothers. In said F.I.R. It has been referred that there is dispute between the Complainant Party and the accused party over some land. There is also no any recovery of robbed Motorcycle from, possession of any of the applicants and the P.Ws. Are closely related to the Complainant.
8. Furthermore, as per Birth Certificate, produced by the learned Counsel for Applicants, duly issued by the Secretary U.C. Gulwali, Taluka Tangwani, the date of birth of applicant/Rasool Bux, is 01.01.1950, so presently his age is about 67 years and old age itself is an infirmity. So far as abscission of the Applicants is concerned it is well settled law that absconsion would not come in the way of grant of bail, if otherwise the case is made out for grant of bail. Reference is made to the case of Mitho Pitafi v. The State (2009 SCM R 299) and case of Amanullah Shah v. The State (PLD 1996 S.0 241).
9. Moreover, Section 395, P.P.C. Provides alternate punishments i.e, imprisonment for life or imprisonment not less than 4 years and '--) more than 10 years and as per the case of Shehzore v.
10. The State reported in 2006 YLR 3167 (Karachi), lesser sentence to be considered by the Court in the matter of bail and in that very case the bail was granted to accused.
11. In view of the above circumstances, the applicants have been able to make out a case for grant of bail. Accordingly, the instant Bail application stands allowed and the applicants are directed to be released on bail on their furnishing solvent surety in the sum of Rs, 100,000/- (one hundred thousand rupees) each and P.R. Bonds in the. Like amount to the satisfaction of the learned Trial Court.
12. ' Needless to mention here that the observations made hereinabove are tentative in nature and Would not influence case of either party at trial.