ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

                                            Cr.Bail.Appl.No.S-  43   of  2013

                                            Cr.Bail.Appl.No.S-  149 of  2013

                                            Cr.Bail.Appl.No.S-  153  of 2013

DATE        ORDER WITH SIGNATURE OF JUDGE

28.06.2013.

Mr. Bashir Ahmed Qureshi, Advocate for applicant in Cr.B.A.No.43/2013.

Mr. Meer Ahmed Mangrio, Advocate for applicant in Cr.B.A.No.149 & 153/2013.

Mr. Shahid Shaikh, A.P.G. for the State.

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            This order will dispose of all the three bail applications arising out of Crime No.89/2013 for offence u/s 392, 34 PPC r/w Section 20 Harabah registered at Police Station Bulri Shah Kareem and Crime No.238/2012 for offence u/s 412 PPC registered at Police Station Tando Muhammad Khan. The applicants moved their bail application before the learned trial Court but the same were dismissed vide orders dated 09.1.2013 and 30.01.2013.

            The facts of the case are that one man and woman hired taxi of the complainant from Bulri Shah Kareem for going to Pataro/Jamshoro and the amount of Rs.1700/- was fixed as fare. Thereafter, on the way said man and woman overpowered the complainant on the point of pistol and snatched the keys of Mehran Car bearing No.KFR-611 and also committed the robbery of China Mobile Phone, CNIC and cash of Rs.200/- At the time of robbery from the complainant, two other persons also joined the said couple at 09^th Mile at Tando Muhammad Khan Road and thereafter, leaving the complainant there, accused went away with the car.

            This incident has taken placed on 21.10.2011 and the F.I.R. was registered on 24.10.2011 at 1200 hours mentioning the aforesaid crime number. Thereafter, on 25.10.2012 ASI Asghar Ali while was available alongwith his police party at Shaikih Bhirkio curve for checking of the vehicles, where they found one white coloured car wherein four persons were seated, two on the front seat and one man and one woman on the rare seat. On seeing the police party, two persons ran away while a man and woman were apprehended who disclosed their names as Faiz Muhammad alias Mamoo and Mst. Salma alias Amna. The police brought the accused at Police Station Tando Muhammad Khan where they were booked u/s 412 PPC.

            Mr. Meer Ahmed Mangrio, the learned counsel for applicant Faiz Muhammad alias Mamoo has contended that there is a delay in lodging the FIR for four days and no plausible explanation has been furnished. The accused was allegedly arrested on 25.10.2012 while the identification test was held on 1.11.2012 after a delay of five days and no explanation is furnished for such a delay in conducting the identification test which makes the case of prosecution doubtful. He further added that as per identification memo, no number of dummies have been mentioned nor their description, on the contrary, the Magistrate has put his note on the identification parade stating therein that accused made complaint that witnesses have seen them in Court prior to this identification parade and on inquiry by the Magistrate, the complainant denied to have met with them in Court but he admitted that he has met the accused persons including the female accused at Tando Muhammad Khan Police Station. According to him, due to the above admission of the complainant, the very authenticity of identification parade becomes doubtful and the benefit of doubt could be extended even at bail stage. So far registration of FIR u/s 412 PPC, he has contended that number of accused is four and as per Section 391 PPC when five or more persons conjointly commit a robbery then the same becomes dacoity and u/s 412 PPC a person dishonestly receiving property stolen in the commission of dacoity is to be booked while in the instant case the number of culprits is four and at the most the offence would fall u/s 411 PPC which is punishable with imprisonment for a term which may not exceed upto 03 years and thereby does not fall within the ambit of prohibitory clause of Section 497 Cr.P.C. In support of his contentions, learned counsel has placed reliance on the cases reported as Naseer Ahmed and another Vs. The State (2009 P.Cr.L.J 1430), Ali Khan and another Vs. The State (2006 YLR 3119) and Mumtaz Imtiaz Vs. The State (2012 YLR 1110).

            Mr. Bashir Ahmed Qureshi, the learned counsel for applicant Mst. Salma alias Amna has contended that case does not fall within the ambit of prohibitory clause of Section 497 Cr.P.C. Moreoever, the applicant is a woman therefore, she is protective under the Woman Protection Act. He therefore, prayed for grant of bail to the applicant. He has lastly contended that trial has not yet been commenced.

            Mr. Shahid Shaikh, learned A.P.G. for the State has contended that applicants have been apprehended alongwith robbed property and they were put to identification parade where the complainant identified them before the Magistrate. Deeper appreciation at bail stage is precluded and on tentative assessment, material is available to connect the accused with the commission of alleged offence.

            I have carefully considered the arguments of learned counsel for the parties and perused the material available on record with their assistance.

            Admittedly, the names of present applicants do not appear in the FIR of Crime No.89/2012 P.S. Bulri Shah Karim. It is an admitted fact that incident has taken place on 21.10.2012 while the FIR was registered on 24.10.2012. It is also an admitted fact on record that the applicants were allegedly arrested on 25.10.2012 and their identification test was held on 1.11.2012. The only piece of evidence against the present applicants is identification parade held before the Magistrate and the Magistrate in memo of identification parade has clearly mentioned that complainant admitted on query that he has met with the accused persons including the lady accused at Police Station prior to holding of identification parade. In such circumstances, the value of the identification parade is yet to be evaluated at the time of trial. I am of the opinion that the factors viz. delay in reporting the matter to police and holding of identification parade so also admission of complainant before the Magistrate at the time of identification parade that he had met with the applicants at Police Station prior to identification parade makes the case of prosecution coming within the meaning of sub-section 2 of Section 497 Cr.P.C.

            Now reverting to Crime No.238/2012 u/s 412 PPC, admittedly the case has been challaned u/s 411 PPC and the punishment provided for such offence is only 03 years. The accused is in jail since last 08 months and since the arrest of accused, even the charge has not been framed by the trial Court.

            In view of above position, I am of the considered view that the applicants have made out a case for grant of bail. Accordingly, both the applicants are admitted to bail subject to furnishing solvent surety in the sum of Rs.100,000/- (one lac) each in Crime No.89/2012 P.S. Bulri Shah Karim and Rs.50,000/- (Fifty thousand) in Crime No.238/2012 P.S. Tando Muhammad Khan to the satisfaction of the trial Court.

            Needless to mention here that the observations made hereinabove are tentative in nature and will not influence the trial Court at the time of deciding the case.

            With the above observations, these bail applications stand disposed of.

                                                                                                            JUDGE                                                          

Tufail