Cr. B.A. No. 882 of 2009.

For hearing.

O R D E R.

Mr. Sardar Akbar F. Ujjan for the applicant.

Mr. Shyam Lal, APG for the State.

Date of hearing: 12.10.2009.

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By short order, I had admitted the applicant to bail. Following are my reasons for having done so.

The applicant is being tried in sessions case No.304 of 2008 on the basis of FIR No. 259 of 2008.

Facts as narrated in the FIR are that on 18.8.2008 Rs.25,00,000/- of Habib Bank Ltd. Kandiaro were being shifted to National Bank of Pakistan by Nasrullah Gilal and Aftab Ahmed Lanjar, HBL officers, and on the way they were waylaid by certain unknown persons who robbed the Rs.25,00,000/-and also snatched the repeater carried by security guard Aftab Ahmed. On the basis of this FIR and police investigation applicant alongwith co-accused Rashid Hattar, among others were arrested.

From Mashirnama dated 5.9.2009 it appears that applicant and co-accused Rashid are stated to have confessed their guilt and that they had allegedly received Rs.400,000/- each as their share from the amount of Rs.25,00,000/-.In the Mashirnama it is stated that the two accused persons stated that they had spent Rs. Two lacs and concealed remaining Rs. Two lacs under banana leaves on western top of the watercourse under Talhi tree near Bana garden of Rajib Kaleri situated near Kandiaro Tharushah link road. Police party alongwith staff accompanied by accused (who were in police custody) were taken to the place as stated by them. It is stated that the accused of their own freewill led the police party to the Banana leaves and on removal of leaves Rs. Four lacs in various denominations were found wrapped in plastic bags at 1330 hours. Since private Mashirs were not available, therefore, two police officials namely ASI Mohammad Amin Dahri and HC. Mohammad Uris Ujan were appointed as Mashirs and cash was taken into police custody.

Learned counsel appearing for the applicant states that the incident occurred in daylight in a busy bazaar but no private person has been cited as witness of the alleged incident. Learned counsel further submitted that bail had been granted to other co-accused Afzal, but the learned trial court has wrongly rejected bail application of the applicant by order dated 8.9.2009. As regards Mashirnam regarding recovery of Rs. Four lacs, learned counsel submitted that mandatory provisions of S.103 CrPC were not complied with. He referred to the requirement under sub-section (1) that two respectable inhabitants of the locality in which the place to be searched is situate were required to attend and witness the search. This, however, was not done and there is no mention in the Masirnama that any efforts were made in this regard. Learned counsel further challenged authenticity of Mashirnama inasmuch as it was stated that the residence of the accused was at a far distance from the place of alleged recovery in terms of Mashirnama. Learned counsel also submitted that recovered cash was stated to have been recovered from a place that was not in the private or exclusive possession of the applicant or any other accused and that in fact it was next to watercourse which was accessible by any person. Furthermore learned counsel submitted that the statement that cash had simply been hidden under some banana leaves was also not believable. Learned counsel relied on PLD 1997 Karachi 484(DB), NLR 2005 Cr (Karachi) 314 (DB) and 2009 SCMR 1248. Learned counsel submitted that it was a case of further enquiry and that in all the circumstances bail should be granted to the applicant.

Learned state counsel submitted that cash of Rs. Four lacs as per Mashirnama was recovered on the pointation of accused. Learned state counsel stated that no instance has been pointed out that the complainant( who was Bank Manager of HBL branch concerned) was inimical or otherwise hostile to the accused. He further submits that case falls under prohibitory clause of S.497(1) CrPC. He further submitted that it was clearly stated in the FIR that accused could be identified. He relied on 2000 PCrLJ 493 and 2000 PCrLJ 1212.

In my view, the fact that mandatory provisions of section 103 CrPC were admittedly not followed and no efforts was made to associate independent witnesses who were respectable persons of the locality required to be searched, cast reasonable doubt on the narration set-forth in the Mashirnama. The almost casual manner in which the recovered cash was stated to have been hidden, and that too in a place not in the exclusive possession of the applicant, and residence of the accused being far away from the hiding place, cast further doubt on the narrative of Mashirnama. It may also be noted that although FIR states that accused persons who committed crime could be identified by HBL officers, no identification parade or other attempt to identify the applicant as one of the persons who committed crime has been made although this could have easily been arranged. In view of these circumstances, I am of the opinion that it is a clear case for further enquiry and that in such circumstances applicant was entitled to bail. The observations stated herein shall not affect the trial since these are observations of a tentative nature for the purpose of the bail application only.

For the foregoing reasons, I had granted bail to the applicant by short order.

JUDGE,

Ahmed.