1. By this order I propose to dispose of Criminal Bail Application filed on behalf of applicant Mukhtiar Ahmed in anticipation of his arrest, in a case bearing Crime F.I.R. No,I4 of 2001 of Police Station Rehmatpur, Larkana, under sections 436, 380, 457, P.P.C. Prior to this, an application for. his pre- arrest bail was moved in the Court of learned 1st Additional Sessions Judge, Larkana and by an order, dated 1-2-2001, the applicant was admitted to interim pre a Lest bail. During the course of investigation the case against the applicant was found false and it was disposed of under section 169, Cr.P.C. In view of that, the learned counsel for the applicant did not press an application for pre-arrest bail and the order, dated 19-5-2001 was dismissed as withdrawn. But before that, by an order, dated 15-5-2001, the learned Sessions Judge, Larkana included the name of the applicant in Column No,4 without any notice to the applicant and issued N.B.Ws. against him. Being embarrassed with this situation, learned counsel for the applicant has repeated this application.
2. 'The prosecution story as unfolded in the F.I.R. is that in the case of theft and burglary four persons namely Ashqiue Ali, Hakim Ali, Ghulam Hussain and Mukhtiar were suspected to have committed the theft in the shop of the complainant and also set the same on fire. Thereafter the complainant alongwith neighbours Ahmed Bux and Munir Ahmed, both Tunios by caste, residents of Nazar Mohalla Larkana, approached the abovesaid accused and they made joint extra-judicial confession in presence of the above witnesses/neighbourer that they have committed the abovesaid crime by mistake. They also disclosed that the matter may not be taken up to police as they are prepared to compensate the loss. The abovesaid accused ultimately refused to return the amount and also to compensate the loss which constrained the complainant to file F.I.R. giving details of the stolen property and burnt articles given in the F.I.R.
3. Heard Mr. Sarfraz Khan Jatoi, learned counsel for the applicant Mukhtiar Ahmed Kalhoro and Mr. Muhammad Ismail Bhutto, Advocate for the State and perused the record.
4. It has been contended by the learned counsel for the applicant that the incident had taken place in between 21/22-2-2001 at unknown time whereas the F.I.R. was registered on 28-1-2001 at 5-30 p.m. and the delay in lodging the F.I.R. appears to be colossal. There is no eye-witness to have witnessed the incident. The only evidence against the applicant and co-accused Ashique Ali, Hakim All and Ghulam Hussain is to the extent of joint extra-judicial confessional statement made before witnesses/neighbourers namely Ahmed Bux and Munir Ahmed which is inadmissible under Article 39 of Qanun-e-Shahadat Order, 1984. Besides, there is no other evidence as P.Ws. Javed and Mumtaz Ali, who are nephew and brother of the complainant respectively, had stated in their statements recorded under section 161, Cr.P.C. in clear and two-fold terms that the accused mentioned in the F.I.R. were innocent and they have been falsely implicated in the case by the complainant. In view of the statement made by the P.Ws. Javed and Mumtaz Ali, learned counsel for the applicant vehemently stated that it is a case of absolutely no evidence.
5. It has been further contended by the learned counsel for the applicant that he is a School Teacher and commands respect in the society, Mohalla people and the public at large. It has also been argued that the involvement of the applicant in the false case of this nature is due to mala fide and ulterior reasons as the complainant party is closely associated with the Investigating Officer and on inimical terms with the applicant on property disputes. The counsel also argued that applicant would be harrassed. humiliated and put to mental torture and agony if he is arrested. He also argued that in view of the deficient evidence, Investigating Officer is bent upon extorting judicial confession of the applicant in order to strengthen the case of prosecution. According to him, the Investigating Officer has detained the women-folk of the applicant at police station in order to disgrace them. In this background the counsel has emphatically argued that it is a fit case where an application for bail in anticipation of his arrest may be granted.
6. Mr. Muhammad Ismail Bhutto, the learned counsel for the State candidly conceded to the grant of pre-arrest bail.
7. I have given my anxious consideration to the arguments of the respective parties and perused the record which shows that the incident had taken place in between 21/22-1-2001 at an unknown time whereas the F.1.R. was registered on 28-1-2001 at 5-30 p.m. which shows that the delay of about 6/7 days in lodging the F.I.R. appears to be inordinate and colossal. There is no eye-witness to have witnessed the incident. The only evidence against the applicant and co-accused Ashique Ali, Hakim Ali and Ghulam Hussain is to the extent of joint extra-judicial confession made in presence of the witnesses/neighbourers namely Ahmed Brix and Munir Ahmed which is inadmissible under Article 39 of Qanun-eShahadat Order, 1984. Besides, there is no other evidence as P. Ws. Javed and Mumtaz Ali who are nephew and brother of complainant respectively: had stated in their statements under section 161, Cr.P.C. made in clear two-fold terms that the accused mentioned in the F.I.R. were innocent and they have been falsely implicated'in the case by the complainant.
8. The record further shows that it is a case of alleged theft and burglary in the house of complainant.
9. Following the investigation the case against the applicant was found false and his name was placed in Column No,2 of the charge-sheet but the learned Sessions Judge, Larkana shifted the name of applicant Mukhtiar Ahmed from Column No,2 to Column No,4 however, he gave no cogent reasons for that. It has been held time and again that the opinion regarding guilt or innocence of the accused has to be formed on the material available on record. ' In this eventuality the material available against the applicant is the joint extra-judicial confession only which is inadmissible under Article 39 of the Qanun-e-Shahadat Order, 1984. Apart from this, there is no other material showing that there are reasonable grounds to believe the applicant being guilty of an offence alleged against him.
10. I have also taken note of facts that applicant is a school teacher and commands respect in the society, Muhalla people and the public at large. Possibility of false involvement of the applicant in this case cannot be ruled out. There is also allegation of mala fide and ulterior reasons as the complainant party are closely associated with the Investigating Officer and on inimical terms with the complainant party on property disputes. The applicant has been harassed, humiliated and put to agony and mental torture by the Investigating Officer who is bent upon extorting judicial confession of the applicant in order to strengthen the .case of the complainant party. It was, therefore, that the Investigating Officer had illegally detained the womenfolk of the applicant at police station and is bent upon insulting, humiliating and harassing the applicant in collusion with the complainant party. In this background, it would be just and expedient if an application for bail in anticipation of his arrest is granted to the applicant. The reference is made to the cases of Jamaluddin v. State 1985 SCM R 1949 and Miran Bux'v. State PLD 1989 SC 347. In the circumstances applicant .Mukhtar Ahmed is granted bail before arrest provided he furnishes surety in the sum of Rs,1,00,000 (one lac) and P.R. Bond in the like amount to the satisfaction of Additional Registrar of this Court.
11. The observations made here in above are confined only to this bail application. They are to be considered as tentative in nature by the learned trial Judge insofar as trial of the main case is concerned. The learned trial Judge will decide the main case in accordance with law, uninfluenced by whatever is observed hereinabove.