1. The applicant Muhammad Ashraf son of Dhani Bux is required by the Police in F.I.R. Crime No.24 of 1991 registered at Police Station Pubjo for offence under sections 365-A and 34/109, P.P.C. Read with section 13-D of the Arms Ordinance, 1965, interim bail before arrest was granted to the applicant vide order dated 28-6-1993 and the same has come up today for confirmation or otherwise.
2. The case of the prosecution is that H.C. Zanul Abidi lodged report at Police Station Pubjo wherein he has mentioned that one Muhammad Afzal had given information that his relative Muhammad Iqbal and the present applicant Muhammad Ashraf had gone for 'irrigating their sugarcane crop when at about 1-00 a.m. 4 unknown dacoits kidnapped them. Subsequently the present applicant was let of by the dacoits near the place known as Pir Shah Mir. The present applicant informed the facts to the police. On receiving spy information, the complainant alongwith other constables duly armed proceeded towards the place of incident and at about 8-5 a.m. They reached the spot. In the meanwhile they also gave wireless information to S.D.P.O. Delatpur who also reached at the place of Wardat alongwith his staff. From the place of Wardat the foot prints were tracked which led them to the house of one A.I Hasan. On their enquiry they came to know that the Said A.I Hasan was not at his house. The police patty received spy information that the said offence has been committed by A.I Hasan, Wahido Pirzado, Gul Shair, Huboo alias Habibullah, Kabeer, Abdul Wahab and Niazo. The police party then searched the sugarcane crop of the surrounding jungle up to sunset time but all in vain. Thereafter, they returned to the Police Station.
3. We have heard Mr. A.I Gohar Soomro, Advocate for the applicant and Mr. Muhammad Zubair Qureshi, A.A.-G. For the State. The latter has not opposed this application.
4. It has been submitted that the name of the applicant does not transpire in the F.I.R. And two of the co-accused namely Nazeer and Fazal have been enlarged on bail by this Court in Criminal Bail Applications Nos. 230 of 1993 and 240 of 1993 while the case of the present applicant in identical, As such, counsel has prayed for grant of bail on the ground of consistency.
5. We have carefully considered the points raised by the learned counsel and so also the material available on record and it is an admitted position that the present applicant was in fact one of the kidnapees and at the initial stage he was a witness in this case. It is also an admitted fact that the initial case of the prosecution was cancelled in "A" class but later on as per the direction of the S.P.
6. The case was re-investigated. During the course of re-investigation the present applicant was shown as an absconder in the challan. Two o f the applicants/co-accused namely Nazeer and Fazal have been enlarged on bail in Criminal Bail Applications Nos.230 of 1993 and 240 of 1993 vide order dated 25-5-1993, copy of which has been placed on record. The co-accused were enlarged on bail on the ground that the 161, Cr.P.C. Statement of kindanapee Muhammad Iqbal was recorded on 3-8-1992, nine months after he was released by the deceits. Furthermore the case was disposed of by the police in A class which meant that there was no evidence in respect of the identity of the accused persons. It may be mentioned that after the kidnapee Muhammad Iqbal was released by the dacoits his 161, Cr.P.C, statement was recorded in which he did not name any of the accused person. Subsequently after about 1-1/2 years; his 164, Cr.P.C. Statement was recorded on 11-3-1993 in which he has implicated the present applicant and others out of whom two of the co-accused namely Nazeer and Fazal have been enlarged on bail. It will thus appear that the case of the present applicant is identical to the case of the two co-accused who are already on bail. In the circumstances, the principle of consistency will apply in this case and therefore the present applicant is also entitled to be enlarged on bail.