ORDER SHEET
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Date Order
with signature of Judge
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DATE OF HEARING 07.08.2013
Mr.
Aamir Mansoob Qureshi Advocate for the Applicants.
Mr.
Zafar Ahmed, Additional Prosecutor General Sindh alongwith Inspector Abdul
Waheed I.O. of the case.
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Syed Hasan Azhar Rizvi J; Applicants/accused have approached to this court after
rejection of their bail by the Ist Additional Sessions Judge, Karachi-East in Bail
Application No.371/2013 on 25.03.2013.
The brief facts of
the case as narrated in the FIR in nutshell are that 02.10.2012 accused persons
armed with weapon after overwhelming the security guards and snatching their
weapons, looted the cash from the bank as well as from the customer, so also
two mobile phones and fled away from the scene.
Learned Counsel
for the Applicants contended that the Applicants/accused are innocent and have
been falsely implicated in the present case by the police due to malafide
intentions and ulterior motives. Learned Counsel for the Applicants submitted
that on 24.12.2012 at 07:00 a.m. on the spy information violating the provision
of section 56 Cr.P.C. Applicants and co-accused Muhammad Aqeel were arrested
and at the time of their arrest it had not been informed to the Applicants by
the police that the Applicants were arrested in the instant crime. No material
is available on record with the prosecution to connect the Applicants in the
commission of alleged offence. Applicants and the co-accused were produced
before XVII Judicial Magistrate, Karachi-East for identification parade but the
identification parade was held in violation of law and prescribed procedure. He
further submitted that identification parade was held more than three months
after the incident and on 9th day after the alleged arrest of the
Applicants, hence the same has no evidentiary value in the eyes of law. Learned
Counsel for the Applicants urged that on 02.01.2013 the statements under
section 164 Cr.P.C. of co-accused Muhammad Aqeel son of Muhammad Laiq was
recorded by learned Judicial Magistrate by giving opportunity of cross
examination to the Applicants is in violation of law and the proceedings are
void as per settled principle of law. Learned Counsel for the Applicants
further contended that Inspector Abdul Waheed Investigating Officer of the case
while violating the provisions of 337 of Pakistan Penal Code filed an
application before the learned Judicial Magistrate seeking permission for
making the co-accused Muhammad Aqeel as approver, which is an illegality as for
making approver in any case the accused himself has to file application under
section 337 and 338 Cr.P.C. and no by the Investigating Officer of the case. Learned
Counsel further submitted that statement under section 164 Cr.P.C. was not
recorded in accordance with law and the requirements to record such statement
as provided in sub-section 2 and 3 of Section 164 Cr.P.c. have not been
complied with by the learned Judicial Magistrate, who had recorded the
statement of co-accused Muhammad Aqeel. He further submitted that in the FIR no
description of the accused persons have been mentioned. Complainant has stated
that six unknown accused persons in pent shirt and shalwar kameez appearing to
be Baloch and Pathan entered into the bank whereas the Applicants are Urdu
Speaking and they can be verified from the hulia form. Learned Counsel for the
Applicants further contended that co-accused Muhammad Aqeel has already been
granted bail by Ist Additional Sessions Judge, Karachi-East in Bail Application
No.369/2013, certified copy of the order is enclosed as Annexure A/16, hence
under the rule of consistency the Applicants are also entitled for concession
of bail. Learned Counsel for the Applicants has relied upon 2011 SCMR 563
(Sabir Ali alias Fauji versus the State), PLD 1995 Supreme Court 34 (Tariq
Bashir and 5 others versus the State), 2012 MLD 814 (Zahid Maseeh and another
versus the State), SBLR 2007 Sindh 249 (Shehmoro versus the State), 2005 YLR
405 (Ghulam Hussain and others versus the State), AIR 1961 ALLAHABAD 153
(Asharfi and another versus the State) and 2013 YLR 208 (Mughal Khan versus the
State).
Conversely,
learned Additional Prosecutor General vehemently opposed the grant of bail to
the Applicants and contended that the Applicants/accused and co-accused
committed theft and robbery of Rs.47,46,280/- at the Bank Al-Habib,
Gulistan-e-Johar Branch, Karachi and sufficient material is available on record
which prima facie connects the Applicants in the present crime. Learned Additional
Prosecutor General further contended that both Applicants were properly
identified in the identification parade held before the Judicial Magistrate by
witness/official of Bank Muhammad Minhaj, who was present at the time of
incident. After arrest of the applicants Investigating Officer of the case
submitted an application under section 337 of Cr.P.C. on the ground that one of
co-accused namely Muhammad Aqeel appeared before the high officials of the
police on 24.12.2012 and after his arrest with the present applicants he intended
to become approver. Statement of co-accused Muhammad Aqeel was recorded on
02.01.2013 by the Judicial Magistrate, Karachi-East, wherein he stated that he
is friend of Applicant Nadeem and he together with Applicants committed bank
dacoity of Rs.47,46,280/- in Bank Al-Habib at Gulistan-e-Johar, therefore,
Applicants are not entitled for any concession of bail.
I have heard Mr.
Aamir Mansoob Qureshi Advocate for Applicants, Mr. Zafar Ahmed Additional
Prosecutor General Sindh and perused the record with their assistance.
Two main aspects
of the matter are confessional statement of the co-accused Muhammad Aqeel, who
become approver and admitted the guilt of the present crime and involved the
present Applicants and identification parade wherein Applicants were identified
by the witness/official of the Bank who was present at the time of incident.
In first aspect
of the matter it is necessary to reproduce Article 43 of Qanoon-e-Shahadat
Order, 1984, which is as follows:-
“43. Consideration of proved confession
affecting person making it and others jointly under trial for same offence. When
more persons than one are being tried jointly for the same offence, and a
confession made by one of such persons is proved.
(a)
such confession shall be proof against the persons;
making it and
(b)
the Court may take into consideration such concession
as circumstantial evidence against such other person”.
The Hon’ble
Supreme Court of Pakistan in a very recent case of Ghulam Ahmed Chishti versus
the State and another reported in 2013 SCMR 385 has held that:-
“The statement
of a person who was initially a co-accused alone may not be sufficient to
convict someone but in terms of Article 43 of the Anun-e-Shahadat Order, it can
be used as a circumstantial piece of evidence at bail stage to form a prima
facie view about the involvement of a person”.
In the present
case co-accused Muhammad Aqeel made confessional statement before the judicial
Magistrate and admitted commission of robbery of Rs.47,46,280/- in Bank
Al-Habib, Gulistan-e-Jauhar, Karachi and involved the applicants in his
statement and also helped the police in arrest of the Applicants. No illegality
or irregularity is appearing in recording of statement of co-accused and even
no enmity, ill-will or grudge has been brought on record by the Applicants to show
their false implication in the present case by the co-accused Muhammad Aqeel.
If the evidence of co-accused is taken into consideration as circumstantial
evidence as held in the case of Ghulam Ahmed Chishti Supra then other
incriminating material including identification parade is available on record,
which prima facie connects the Applicants in the present crime.
Second aspect of the matter is identification parade
wherein the witness/official of the Bank
who was present at the time of incident had properly identified the Applicants.
So far as the delay in holding identification parade is concerned not a single
word has been brought on record that the Applicants were shown to the witness
prior to holding of identification parade and no such objection was raised
before the Magistrate therefore, such
delay in holding the identification parade in any way does not fatal to the
case of the prosecution as has been held by the Hon’ble Apex Court in 1985 SCMR
1834 (Ali Muhammad and another versus the State), relevant portion is
reproduced herein below:-
“Identification
parade. Delay in holding of. Capability to identify after lapse of considerable
time. Delay per se, particularly where accused are apprehended after long time,
would not prejudice capability, if otherwise enough, of eye-witnesses to
identify culprits. No hard and fast rule that a delayed parade due to late
arrest/discovery of culprits is always to be rejected present but depends upon
a host of circumstances including type of witnesses, and other factors. Even
fleeting glimpse of a person, specially placed in a position of immense
importance, would be revived in memory after long time, provided bond of event
and embedding in memory were of permanent character.
In view of the
above facts and circumstances, so also case laws, I do not find any reason to
believe the version of the Applicants as sufficient material is available on
record, which prima facie connects the Applicants in the present case. The case
laws cited by the learned Counsel for the Applicants in my humble opinion are
distinguishable and not applicable to the facts and circumstances of the
present case.
Above are the reasons of my
short order dated 07.08.2013 whereby the instant Bail Application was
dismissed.
Observations made hereinabove are of tentative nature and the trial
Court shall not be influenced by any such observation.
J
U D G E
Karachi
Dated _________________