Mr. Justice Aqeel Ahmed Abbasi.
Date of hearing : 13.05.2011
of order : 13.05.2011
Applicant : Rashid S/O Anwar through Mr. Haji Zafar-ul-Haque, Advocate
Respondent The State through Mr. Abrar
Ali Khichi, APG.
O R D E R
Aqeel Ahmed Abbasi, J. Being aggrieved and dissatisfied with the order dated 24.03.2011 passed by the Vth Additional Sessions Judge Karachi West in Sessions Case No.205/2011 arising out of F.I.R No.39/200 registered under Section 392/397/34 PPC at P.S. Sher Shah, whereby the learned Assistant Sessions Judge dismissed the bail application of the applicant, the applicant has filed instant bail application before this Court seeking his release of applicant on bail.
2. Brief facts relevant for the purposes of disposal of instant bail application and the prosecution story as stated in the FIR is as follows:-
“Complainant, Talha son of Jumma Khan has
been recorded, that I reside at above address and work as a used articles
(Kabari), today on 07.02.2011 at about 2 hours with drawn Rs.82,000/- from
Al-Habib Bank Shershah Branch, ride on Motorcyle and started to go towards
home, two men followed me I just click my mind that they are robbers/dakoo I ran towards the Street No.6, Akbar Road
Shadi Hall and entered , where I told the people present there the robbers also
entered there, one of them Hit pistol butt on my head in injured by that and
the told me handover the cash amount of Rs.82,000/- to them and one person
snatched my Mobile Phone, meanwhile area people gathered there who caught them
and started to best and snatched pistol, that just at that time police mobile
and Rangers reached there and apprehended both the robbers. The people handed
over to the robbers to police with pistol and motorcycle. Police took the
robbers and me at Civil Hospital where the robbers disclosed their names
Badar-uz-Zaman son of Shamim and other Rashid son of Anwar, who are under
treatment on emergency ward, my complaint for both robbers to snatched from me
cash and mobile phone, I cam at police station to take legal action against
3. It is inter alia contended by the learned counsel for the applicant that the applicant is innocent and has been falsely implicated in this case with malafide intention and ulterior motives. Per learned counsel, the prosecution story is false, fabricated, bogus and concocted, as allegedly accused persons followed the complainant from Bank to Hall in which they entered with armed however, no one intercepted them. The complainant alleged in the said FIR that the robbers hit butt of pistol on his head whereafter he was injured, however, No MLO report of the injured complainant has been field. Per learned counsel, it is very surprising note that as per prosecution story, muhallah people gathered who started beating both robbers with pistol and handed over them to police who took them at civil Hospital. However, no memo of arrest has been prepared at the spot and not a single witness from the place of wardat has been taken except the complainant. Nothing has been recovered from the possession of the applicant that i.e. allegedly robbed cash, whereas recovery of pistol has been foisted upon the applicant to justify his arrest in the false case. Per learned counsel, even sketch has been prepared. It is further contended that the alleged offence of 397 Cr.P.C is not made out whereas the alleged offence under section 392 PPC does not fall in prohibitory clause of section 497 Cr.P.C. Per learned counsel, the matter requires further inquiry, whereas the applicant has a prima-facie good case to be released on bail.
4. Learned A.P.G has not opposed the grant of bail, as according to him in view of deficiency in the persecution case, matter requires further inquiry.
5. I have heard the learned counsel for the applicant as well as learned A.P.G and perused the record. On tentative assessment, it appears that inspite of alleged arrest on the spot, no recovery has been shown, whereas neither memo of arrest has been prepared at the spot by associating private witnesses, nor any independent witness appears to have been mentioned as prosecution witness. No MLO report of the injured complainant has been produced whereas no statement under section 161 of the Mohallah people has been recorded. Challan has been submitted, whereas applicant is no more required for investigation.
6. Under the circumstances and in view of no objection by learned APG, I am of the view that the applicant has made out a case for grant of bail. Accordingly, applicant was admitted to bail subject to furnishing surety in the sum of Rs.1,00,000/- (Rupees One Lac) with P.R. bond in the like amount to the satisfaction of the learned trial Court vide short order dated 13.5.2011 and these are the reasons for such short order.
7. Needless of observe that the
observations made herein are tentative in nature and shall not prejudice the
merits of the case which may be examined strictly in accordance with law and on
the basis of evidence on record.
8. However, it is clarified that if,
the applicant misuses the concession of bail in any manner, the learned trial
Court shall be at liberty to proceed against the applicant as per law.