ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Cr. Bail Application No.908 of 2010. _____________________________________________________
Date Order with signature of Judge
For hearing
13.10.2010.
Mr. Abid Hussain, Advocate for the Applicants
Mr. Imtiaz Ali Jalbani A.P.G.
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Being aggrieved and dissatisfied with the order dated 18.6.2010 passed by VIIIth Assistant Sessions Judge, Karachi East in Crime No. 360/2010, under Section 392/34 PPC at P.S. Gulshan-e-Iqbal, whereby the Bail Application No.832 of 2010 filed by the present applicants/accused was dismissed. The applicants/accused have preferred the present bail application before this Court.
The case of the prosecution is that complainant namely, Syed Ali Hassan lodged an FIR No.369/2010 on 7.5.2010 in respect of an incident dated 6.5.2010 in which it has been stated as follows:
“I live on the above address and work as a Lecturer in PNS Johar. Today on 06.05.2010, I was going from Skill Development Centre, Block-5, Gulshan-e-Iqbal to my house after taking my classes of Import and Export, when I reached Sardar Ali Sabri Road, near Sir Syed University, Block-5, two persons covered me by Pistol who were wearing Shalwar Qameez and demanded my cell phone and wallet, I under fear handed over them my Mobile Phone Nokia No.1100, black colored alongwith SIM Card No.0333-3095956 and wallet of maroon color having cash Rs.13000/- and my one photograph, my old driving license, copy of my CNIC alongwith some visiting cards and thereafter they speed away by a nearest parked yellow colored Rikshaw having no number plate. I was very scared. I walked to my aunt’s house near Nipa Chowrangi. I borrowed fare from my aunty and went to my house. I was trying to sleep in my house in the meanwhile two police men came to my house and asked about any wardat whereupon I told them about the incident. They told me that they have arrested two bandits and if I wanted to report the matter I may come to the police station and identify the articles. I was happy and went to the police station where the names of bandits were disclosed to me as Aqeel Abbas son of Ahmed Baksh and Shabbir Ahmed son of Allah Wasaya and I identified my articles. The bandits disclosed the name of their escaped partner as Khalid @ Gujjar @ Imran son of not known and confessed that my articles were recovered from them, hence I reported that they have snatched my articles on gun point and I want legal action against them.”
Applicants/accused were arrested on 7.5.2010 in connection with another FIR No.366/2010, where, as per prosecution story, during interrogation in FIR No.366/2010 applicants/accused have admitted to have committed offence as stated in the instant FIR. Challan has been submitted in Court, whereas charge has not so far been framed.
It is inter alia contended by the learned counsel for the applicants/accused persons that both the applicants/accused have been falsely implicated in the instant crime by the police, whereas there is delay of one day in lodging the FIR which as per the contents of the FIR has been registered by the complainant at the instigation of the police after calling the complainant to police station. Per learned counsel, the applicants/accused were not arrested at the spot nor the complainant claimed to have identified the applicants/accused persons, whereas no identification parade as per law has been conducted. Per learned counsel, identification of the applicants/accused at police station has no evidentiary value, whereas no private mashir of the arrest or alleged recovery has been associated by police. Per learned counsel, the instant crime and the alleged recovery has been foisted by the police against the applicants/accused persons who were arrested in another case wherein they have been granted bail by the learned Sessions Judge Karachi East vide its order dated 29.5.2010 in Bail Application No.744 of 2010. Per learned counsel, the prosecution story is doubtful and requires further inquiry into the matter, therefore, prayed that the applicants/accused may be admitted to bail. In support of his contention, learned counsel has placed reliance on the following cases:
1. Ghazi Sarfaraz v. The State 2008 S.L.J 1262
2. Hidayat Ullah v. The State 2008 Y.L.R 1747
3. Hakeem Shah v. The State P.L.J 2008 Cr.C.(Peshawar) 1078
4. Muhammad Anis v. The State S.B.L.R 2008 Sindh 1915
5. Shafique-ul-Haq v. The State 2008 P.Cr.L.J 917
Conversely, the learned A.P.G has supported the impugned order and submitted that the recovery has been affected from the applicants/accused persons, therefore, in terms of Article 38 and 40 of Qanoon-e-Shahadat Act, the applicants/accused are connected in the instant crime. He has placed reliance in the case of Suleman v. The State 2008 P.Cr.L.J 1612 and Ashfaq alias Shakoo v. The State 2009 P.Cr.L.J 889.
I have heard the learned counsel for the applicants as well as learned A.P.G and perused the record of the case. It appears that the complainant has not volunteered to register the FIR about the alleged crime, whereas on the next day of the alleged incidence, the complainant was called from the concerned police station where the applicants/accused persons were already arrested in another FIR No.366/2010. It further appears that it was police who informed the complainant about the alleged recovery of the articles from the possession of the present applicants/accused persons, whereas there is nothing on record to show that the complainant himself has even identified the applicants/accused persons at Police Station. In view of hereinabove facts, the prosecution story about the alleged identification and recovery even at Police Station is highly doubtful and requires further inquiry. Accordingly, applicants/accused are admitted to bail subject to furnishing surety in the sum of Rs.1,00,000/- (Rupees One Lac) each with P.R. bond in the like amount to the satisfaction of the trial Court.
It is clarified that if the applicants/accused misuse the concession of bail in any manner, the learned trial Court shall be at liberty to proceed against the applicants/accused as per law.
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 keeping in view the evidence available on record.
JUDGE