ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Cr. Bail Application No.120 of 2008

Date                                         Order with signature of Judge

For hearing.

14.2.2008.

Messrs Abdul Khaliq and G.H. Niazi, for the applicant.

Mr. Fazlur Rehman Awan, for the State.

…..

Heard learned counsel for the respective parties.

Learned counsel for the applicant submits that FIR is delayed by four days. No identification parade has taken place and as such the applicants are entitled to bail. Learned advocate for the applicant has relied upon the judgment of Hon'ble Supreme Court reported as FARMAN ALI v. STATE (1997 SCMR 971) and emphasized paragraph (b) at page 972, which is reproduced herein below in extenso:-

"—Ss.497 & 103—Penal Code (XLV of 1860). S.392—Constitution of Pakistan 91973), Art.185(3)—Bail--Holding of identification test could not be dispensed with simply because accused who had allegedly committed the robbery had been subsequently found in possession of the robbed goods---Truck having been robbed in the presence of the complainant driver and his cleaner, identification test through them was absolutely necessary---Investigating police did not appear to have complied with the provision of S.103, Cr.P.C. while effecting the recovery of the robbed truck—Petition for leave to appear was converted into appeal in circumstances and the accused was admitted to bail accordingly."

Learned advocate for the applicant has further submitted that there is a private dispute between the complainant as well as the accused and accused has been falsely implicated in this case.

Learned counsel for the State submits that recovery has been made from the accused persons, who were arrested by Jamshed Quarters Police under Section 54, Cr.P.C. and motorcycle was detained under Section 550, Cr.P.C. Thereafter the police of Kharadar Police Station was contacted by Jamshed Quarters Police Station. The Investigation Officer alongwith the complainant went to Jamshed Quarters Police Station and the complainant had seen the accused persons at the police station and had identified them as the persons who had actually snatched the motorcycle from the complainant on the gun point. Learned counsel for the State has opposed the bail application.

The case law referred to above by learned counsel for the applicant has been perused by me. The facts of the present case are totally different from that of the case cited by learned advocate for the applicant. In the present case no mala fide has been shown against the police. Moreover, the police, in whose jurisdiction the offence was committed, has not arrested the accused. Accused have been arrested by chance by another police while they were going on a motorcycle without documents. The Jamshed Quarters Police, at the first instance, had detained the accused under Section 54, Cr.P.C. and the motorcycle was detained under Section 550, Cr.P.C. Subsequently, police of Kharadar Police Station was contacted who had called the complainant and after identification of the accused by the complainant present applicant was arrested. The facts of the case are totally different and as such the law cited by learned advocate is not applicable in this case. The defence plea that there is enmity between the parties requires evidence to be recorded by the trial Court and cross-examination of the complainant in order to establish the defence plea. Provisions of Section 103, Cr.P.C. are not applicable in this case.

Consequently, this application for bail has no merits and is dismissed. However, the learned trial Court is directed to record the evidence of the complainant within three months of receipt of this order. Thereafter it is open for the applicant to move fresh bail application in the trial Court, if so advised.

Judge