ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Cr. Bail Application No.882 of 2010. _____________________________________________________
Date Order with signature of Judge
For hearing
04.10.2010.
Mr. Muhammad Azad Khan, Advocate for the Applicant
Ms. Rahat Ahsan, A.P.G.
-----------
Being aggrieved by and dis-satisfied with the order dated 12.08.2010 passed by the learned IVth Additional Sessions Judge Karachi East, whereby the bail to the present applicant/accused has been declined. The applicant/accused has filed the instant bail application before this Court.
Brief facts for the purposes of disposal of the instant F.I.R and prosecution story is that on 21.6.2010 at about 0045 hours one Madad Hussain Zaidi lodged an FIR stating therein that he is working as a Manager in Qasim Paradise, situated at Shop Nos.13 & 14, Block 18, Gulistan–e-Jauhar, Karachi. On 20.6.2010 at 2300 hours he alongwith his colleagues was present in the factory, in the meanwhile 8 to 10 armed persons came therein in which Bari Baloch and Shani were also with them. Out of them Bari Baloch demanded Rs.10,000/- but he replied that cashier is not present, following which accused caused butt blow to him and also cause fist blow to his other colleagues and robbed Rs.90,000/- alongwith cheque of Rs.11,700/- which were lying in the counter. Out of them four boys/culprits fled away by a Car being registration No.ALO-640 while rest of the culprits made their escape good by motorcycles. The above incident was witnessed by Imtiaz, Farhan, Tabish, Suleman, Zeeshan, Manzoor, Hassam, Jahanzab, Kamran Naqvi and Ubaid Ali who can identify the culprits.
It is inter alia contended by the learned counsel for the applicant/accused that name of the applicant does not find place in the FIR nor his features/Hulia have been given in the F.I.R. No identification parade has been held and there is no recovery of any of the incriminating articles from the present applicant. It is further argued that names of seven accused Ehtesham, Imran, Kashif, Khalid Khan, Bari Baloch, Haris alias Azish, Haroon and Mumtaz Bangash have been placed in colum-2 of the challan due to insufficient evidence. Learned counsel has also referred to an order passed by this Court in Cr. Bail Application No.741 of 2010 whereby co-accused who was arrested alongwith instant applicant/accused namely Arsalan Shahzad, has been granted bail by this Court vide order dated 5.8.2010. Learned counsel for the applicant/accused states that no recovery has been affected from the applicant/accused , whereas main accused nominated in the F.I.R has been shown in column-2. Learned counsel finally argued that this is a case of further inquiry, the applicant/accused may be admitted to bail subject to furnishing surety. In support of his arguments, learned counsel has relied upon the following case law:-
1. Muhammad Arif v. The State 1997 SCMR 462
2. Muhammad Rafique v. The State 1997 SCMR 412
3. Munir Ahmed v. The State 2003 P.Cr.L.J 758
4. Sajid Hussain and others v. The State 2002 P.Cr.L.J 1111
5. Fida Hussain v. The State 2003 P.Cr.L.J 1101
6. Pervaiz Ali Shaikh & another v. The State 1997 P.Cr.L.J 1988
7. Muhammad Suleman v. Riasat Ali & another 2002 SCMR 1304
Conversely, learned A.P.G opposed the bail plea of the applicant on the ground that offence falls within the prohibitory clause of Section 497 (1) Cr.P.C and the present applicant has been identified by PW-Farhan while he was in police custody whereas motorcycle has also been recovered. However, she could not controvert contentions raised by the learned counsel for the applicant.
I have heard the learned counsel for the applicant as well as A.P.G and perused the record. It appears that the name of the applicant/accused does not transpire in the F.I.R nor the features or mark of identification of the applicant/accused has been mentioned. No identification parade appears to have been arranged before the Magistrate as per rule, whereas no article allegedly robbed has been recovered from the possession of the present applicant/accused. The main accused nominated in the F.I.R has been admitted on bail, whereas co-accused namely, Arsalan Shahzad has been granted bail by this Court.
Keeping in view hereinabove fact, it appears to be a case of further inquiry and prosecution story cannot be termed as free from doubt. I am of the opinion that the applicant/accused has made out a case for grant of bail. Accordingly, applicant/accused is admitted to bail subject to furnishing solvent surety in the sum of Rs.1,00,000/- (Rupees One Lac) and P.R. bond in the like amount to the satisfaction of the trial Court.
Needless to observe that the observations made hereinabove are tentative in nature and trial court shall not be prejudiced by any such observations and shall decide the case strictly on merits.
J U D G E