ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Cr. Bail Application No.233 of 2010. _____________________________________________________
Date Order with signature of Judge
For hearing
06.09.2010.
Mr. Jamroz Khan Afridi, Advocate for the Applicants
Mr. Shahzado Saleem, APG
-----------
Being aggrieved and dis-satisfied with the order dated 05.03.2010 passed by the learned IVth Additional District Judge, Karachi West, whereby the bail application moved on behalf of the present applicant was dismissed, the applicant has preferred instant bail application before this Court under Section 497 Cr. P.C. The relevant facts for the disposal of the instant bail application are that one Muhammad Aslam, Regional Manager of Utility Stores Corporation, Plot No.F-221, SITE, Karachi, lodged FIR in writing about the theft of huge stock of various articles lying at Utility Store between the night of 30.12.2009 and 31.12.2009 by unknown miscreant with the connivance of private Security Guards. It has been alleged in the FIR that the huge stock of Tea, Soaps, Shampoo and Nestle amounting to Rs.89,97,808.00 was taken in trucks from the warehouse. The case was registered on 02.01.2010 under Section 457/380/34 PPC by the ASI Daneyal Adil of P.S. SITE, however, it appears that thereafter the case was assigned to the present I/O ASI Jahanzeb Khan, who after conducting the enquiry and recording the statements of the Security Guards and Chowkidar of the Warehouse as well as other prosecution witnesses submitted challan on 13.02.2010, wherein he has included Section 395/34 PPC and also arrested the present applicants/accused namely Zain Khan son of Azeem Khan and Zar Khan son of Khan Muhammad from Peshawar Jail, where they were behind the bar in another crime registered at Peshawar.
It is inter-alia contended by the learned counsel for the applicants that the applicants are innocent and have been falsely implicated in the instant crime. Learned counsel further states that they have not been nominated in the FIR which was registered after delay of 2 days i.e. on 02.01.2010. It is further argued that the statement of prosecution witnesses was recorded after about 14 days, whereas, accused was arrested after 26 days from Peshawar Jail. Learned counsel has argued that the applicants have not been nominated in the FIR nor any specific role assigned to them. Per learned counsel no recovery of any arms or stolen articles has been affected from the person of applicants/accused, who are innocent and have been falsely implicated in the instant crime. No identification parade has been made nor any material is available with the prosecution to connect the present applicant in the instant crime. Per learned counsel this is a case of further enquiry into the matter and the same is doubtful. In support of his submission, the learned counsel has relied upon the following case law:-
1. Muhammad Anis v. The State PLD 2008 Karachi 1
2. Muhammad Suleman v. Riasat Ali and another 2002 SCMR 1304
3. Jani and another v. The State1996 P.Cr. L.J. 656
4. Muhammad Khan v. Maula Bakhsh and another 1998 SCMR 570
5. Riaz Hussain v. The State 2008 YLR 803
Conversely, the learned APG alongwith I/O of the case namely Jahanzeb Khan have vehemently opposed the grant of bail to the present applicants/accused on the ground that both the applicants have been nominated by the prosecution witnesses i.e. the 3 Security Guards and Chowkidar at Site and further there is concrete material available with the prosecution relating to mobile record of the present applicants/accused persons and nexus to the other co-accused, who have also been arrested in the instant crime. The I.O. present has referred to the detailed investigation and various letters and statements under Section 161 of the prosecution witnesses to show that after conducting proper investigation, obtaining the record of mobile company and after examining the other material witnesses, the applicants/accused were arrested from Peshawar Jail and were brought to Karachi where their bail application was rejected by the learned trial Court and they are facing trial. The learned APG has mainly argued that the applicants/accused are part of national gang of robbers who operate from Peshawar and committing crime in different provinces. The I.O. has expressed his serious apprehension that if applicants/accused, who are die hard criminals, are released on bail, they will not only destroy and temper with the further evidence but will also cause harms and injury to his life. I.O. also given the detail as to how he has on the pointation of present applications/accused person has raided at Peshawar in a shop from where considerable stock of stolen/robbed articles worth millions of rupees have been recovered whereas rest of the stolen/robbed stock has been shifted to Illaqa Ghair. The learned APG states that there is enough material and evidence as well as confession of the applicants/accused which connects the applicant with the alleged crime. Learned APG thus concluded that since public property worth millions of rupees has been stolen/robbed the applicants/accused are not entitled for the grant of bail and their application for grant of bail may be dismissed. In support of his contention the learned APG has referred to reported judgment in the case of Muhammad Shahid Vs. The State 2002 SCMR 247. Learned APG further argued that the case law referred and relied upon by the learned counsel for the applicants does not relates to bail matters and further the facts of such cases are different and distinguishable from instant case, in which considerable recovery has already been affected. He further argued that the present applicants/accused are not entitled for the concession of bail.
I have heard the arguments of both the learned counsel and perused the record. On tentative assessment of the record and the investigation conducted by the prosecution so far, it appears that the huge stock of public property lying at the utility store was stolen/robbed from Utility Store. The I.O. of the case, after investigation arrested the present applicants/accused persons and on their pointation, appears to have recovered the substantial stock of stolen/robbed articles, whereas efforts are being made to recover the remaining stock. It further appears that there is more material available with the prosecution relating to mobile phone record which may also connect the accused persons from the alleged crime. Keeping in view hereinabove facts and the recovery of the stolen/robbed articles on the pointation of the present applicants/accused persons immediately after their arrest, it appears that a prima-facie case is made out against the applicants/accused persons which dis-entitle them to the concession of bail at this stage. Any deeper appreciation of the evidence at this stage is not warranted as the same might effect the case of prosecution or the applicants both. However, on tentative assessment of the material on record it appears that there is sufficient material available with the prosecution to connect the applicants/accused persons with the alleged crime. I am fortified in my view by a judgment of the Hon’ble Supreme Court reported as 2002 SCMR 247 Muhammad Shahid Vs. The State wherein it has been held:-
“The petitioner was arrested on 31.08.2000 and he immediately after arrest led to the recovery of huge quantity of 25 number coppers coils, the property of the dacoity, thus there appears to be a prima facie, case against him to disentitle him the concession of bail”.
In view of hereinabove facts, I am of the opinion that the applicants/accused persons have not been able to make out the case of grant of bail at this stage, the bail to both the applicants/accused is hereby dismissed.
Karachi. J U D G E
Dated .09.2010