2020 PLP 45 (YLRN)

ABDUL MAALIK GADDI, J.

By this bail application under section 497, Cr.P.C., applicant Muhammad Ali Khan alias Choto has approached this Court for grant of bail in Crime No.128 of 2019 registered at Police Station Gulshan-e-Iqbal, Karachi, wherein he has been charged with the commission of offences punishable under sections 392/337-A(i)/34 read with sections 394/395, P.P.C.

2. Brief facts of the case as stated in FIR as per verbatim of the complainant of the case namely Syed Muhammad Ashraf Zaidi, are as under:- "I am working as Manager Operation at the Askari Bank Limited Allama Shabbir Ahmed Usmani Road, Block-3, Gulshan-e-Iqbal, Karachi. Today on 03.03.2019 I was present at my home when I was informed on phone by the Head office that the ATM Machine installed at the bank is not working at about 08:00 o'clock I on receiving the information reached at the branch bank. I tried to open the door but it was not opening. I sneak through the glass inside the bank I saw the guard of the bank namely Mukhtiar, whose hands were on his back. I feel suspicious activity and immediately informed my head office as well as phoenix security company. The vehicle of phoenix security came and opened the door. I along with the security personnel went inside and the security guard Mukhtiar informed me that "At 07:00 p.m., I came on the duty when I came inside the bank I saw the security guard Kashif son of Syed Anwer Ali whose duty was from 07:00 O'clock morning till 07:00 in the evening, he opened the door for me and when I entered inside I saw guard Aslam whose duty is in the night shift was lying on the floor and his hand and feet were tied with the rope in front of store room. Meanwhile, Kashif and his three other associates who were present at the bank came caught me and tied me up with chair. Aslam security guard informed me that he came at 4 O'clock in the evening at branch on his duty and knocked the door which was opened by the Kashif (Security guard of the morning shift), as soon as he entered into the bank Kashif and his three associates who were already present at the bank caught him, on his resistance and hue and cry they started beating him with punches and kicks and then tied his hands and feet and thrown him in front of store room". I immediately went upside portion and saw that the locker room of the bank was open and the lockers inside the locker room were broken, the articles/items kept in these lockers have been stolen by the Kashif along with his three friends and has escaped. While, escaping they have also taken away one TT Pistol and one 12 bore rifle owned by the security company along with them. Now I have come to report my claim is against the security guard Kasha and his three unknown associates name and address unknown, identifiable by face, who on gun point broke open the lockers of the bank and has looted the articles (Worth of which is yet to be ascertain) and also the weapon of the security company. Further they on showing resistance by guard Aslam son of Ayub has injured him beating him."

3. It is inter alia contended by the learned Counsel for the applicant that case against the applicant is false and has been registered with mala fide intention by the police in collusion with the complainant; that there is no evidence against the accused except hearsay evidence and extra judicial statement made in investigation in police custody in violation of sections 38, 39 and 43 of the Qanun-e-Shahadat Order, 1984 being inadmissible in evidence; that applicant was shown to be arrested in crime No.306 of 2015 of Police Station Gulshan-e-Iqbal in which he was discharged by learned Judicial Magistrate at the time of remand and said order was never challenged, but police with mala fide intention nominated him firstly in FIR No.54 of 2019, thereafter, in present Crime No.128 of 2019 of Police Station Gulshan-e-Iqbal; that applicant was arrested on 22.03.2019 from his house in Crime No.306 of 2019 where recovery was shown to have effected from him. Again on 27.03.2019 recovery in present crime was alleged to have been made from his house; that if any alleged article in the crime was lying in the house of applicant, then why it was not found during arrest on 26.03.2019, which shows mala fide on the part of the police, and alleged recovery and case against the applicant at this stage requires further inquiry; that the applicant is not nominated in the FIR, nor his confessional statement was recorded, nor statement of any eye-witness was recorded before Magistrate, nor identification test parade was conducted, nor CCTV footage was collected, hence, there are no reasonable grounds to believe that applicant has committed the alleged offence; that as per medical evidence, both the legs of accused were broken which reveals that applicant was victimized by the police; that 395, P.P.C. also provided the minimum punishment and it is settled law that at bail stage lesser punishment must be taken into consideration; that alleged recovery was effected after the delay of six days, hence, it requires further inquiry and applicant/accused may be released on bail. In support of his contentions, learned Counsel for the applicant has relied upon the following case laws:-- i. Jamal-ud-Din alias Zubair Khan v. The State reported as 2012 SCMR 573; ii. Muhammad Waseem v. The State and others reported as 2012 SCMR 387; iii. Muhammad Tanveer v. The State and another reported as PLD 2017 SC 733; iv. Allah Ditta v. The State and others reported as 2012 SCMR 184; v. Tariq Bashir and 5 others v. The State reported as PLD 1995 SC 34; vi. Tajammal Hussain Anjum alias Phalo v. The State and another reported as 2018 PCr.LJ 598; vii. Ameer Hamza v. The State and others reported as 2017 PCr.LJ 21; viii. Ehsan Ullah v. The State and another reported as 2017 YLR 2524; ix. Muhammad Nazir Khan v. The State reported as 2009 PCr.LJ 980; x. Abdul Razzak alias Kotchi v. The State and another reported as 2007 PCr.LJ 979; xi. Muhammad Iqbal v. The State reported as 2008 MLD 141; xii. Muhammad Ali v. The State reported as 2008 PCr.LJ 87; xiii. Sabir Ali Waseem v. The State reported as 2006 PCr.LJ 1400; xiv. Abdul Waheed v. The State and another reported as 2017 YLR Note 5; xv. Ghulam Murtaza alias Bubal v. The State and another reported as 2017 YLR 364; xvi. Imran Rasheed v. The State reported as 2016 MLD 862; xvii. Shehmoro v. The State reported as 2006 YLR 3167.

4. Conversely, learned Deputy Prosecutor General, Sindh assisted by the Counsel for complainant, opposed the bail application on the ground that applicant is habitual offender found involved in different crimes and he at the time of arrest tried to run away by jumping from the building, hence, his both legs were broken. He further argued that during interrogation he confessed the guilt and voluntarily produced his share of booty received by him. He further argued that eye-witness namely Mukhtiar and Aslam also subsequently identified him to be same. He added that if bail application of accused is granted, there will be apprehension of repetition of offence. In support of his contentions, learned Deputy Prosecutor General, Sindh has relied upon the following case laws:- i. Ameer Hamza v. The State reported as 2017 PCr.LJ 21; ii. Asif Baig v. The State reported as 2017 PCr.LJ 16; iii. Muhammad Naseem v. The State reported as 2012 PCr.LJ 918; iv. Sarfaraz Hussain Khera v. The State reported as 2004 MLD 432;

5. I have heard the learned Counsel for the parties at a considerable length and have gone through the case papers along with case laws cited by them.

6. As per police papers, it reveals that it is the case of bank dacoittee. None mentioning of the name of the applicant in FIR in dacoittee matter is immaterial. It could not be expected that at the time of incident, the accused disclosed his name or his identity. As per police papers, it also reveals that the present applicant has been arrested in this crime on 26.03.2019 and that during interrogation, applicant led the police party to his house and cash amount of Rs.500,000/-, which was robbed/looted in the present crime, and mobile phone were recovered on his pointation in presence of mashirs namely, HC Disoosa Paul and PC Ahmed Ali, who have no inimical terms with the applicant, and as per Article 40 of the Qanun-e-Shahadat Order, 1984, the said evidence is admissible. It reveals from the record that charge sheet against the present applicant was also submitted before the learned Magistrate, in which applicant was shown to be a member of organized group habitually involved in like offences. The punishment of the offences under which the present applicant has been booked, do not fall with the prohibitory clause of section 497, Cr.P.C.

7. It is argued by the learned Counsel for the applicant that under Sections 394 and 395, P.P.C., an alternate punishment has been provided viz. imprisonment for life or imprisonment not less than four years and more than ten years and contended that when an alternate sentence has been provided, then lesser punishment should be considered by the Court for grant of bail. Reverting to the contentions of the learned Counsel for the applicant, it is suffice to say that the applicant/accused is involved in bank dacoittee and prior to this, as per police papers, an FIR bearing No.54 of 2019 of police station Defence with regard to bank dacoittee of Faysal Bank, has also been lodged, in which applicant/accused is facing the charge. Therefore, an exceptional circumstance also appears in this case to withhold the bail of the applicant. This is also a rule of law applied by the superior courts that when a person is involved in a serious type of cases related to offences badly affecting public-at-large, in such cases discretion of granting bail may be refused to an accused person.

8. Since some of the looted amount has also been recovered on the pointation of the applicant from his house, and during interrogation, PWs Aslam and Mukhtiar have also identified the applicant as one of the accused, who entered in the bank along with co-accused and committed dacoittee after broken the number of lockers and looted the huge amount. The allegations against the applicant appears to be serious and heinous in nature and mobile phone, which was in use of co-accused Kashif (absconder in this case) was also guard of the bank, was recovered from the applicant on his pointation. There is no explanation by the learned Counsel for the applicant that the said mobile phone, which was in use of co-accused Kashif, was recovered from the applicant. It is also argued by learned Counsel for the applicant that identification parade was not held before the Magistrate, but the learned Deputy Prosecutor General, Sindh has pointed out that it was not possible because at the time of arrest of the applicant in Crime No.54 of 2019 of police station Defence, applicant had tried to run away by jumping from building, as such, his both legs were broken, hence, in the said condition, identification test/parade was not possible. Be that as it may, PWs Mukhtiar and Aslam, who were also the security guards at bank have identified the accused and recovered the looted amount along with mobile phone, which was in use of co-accused Kashif, therefore, prima facie, involvement of the applicant is appearing in this case.

9. During the course of arguments, learned Counsel for the applicant has made an attempt to show some lapses/ discrepancies in the prosecution case i.e. challan sheet, but these lapses/ discrepancies have been denied by learned Deputy Prosecutor General, Sindh and submits that there is absolutely no discrepancies in the case of prosecution appears. However, the contentions of the learned Counsel for the applicant in this regard requires deeper appreciation of the evidence, which is not possible at this stage. As per police papers, sufficient material is available against the applicant/ accused to connect him in this case, therefore, this bail application merits no consideration is hereby dismissed. The case laws cited by learned Counsel for the applicant have been perused and considered by me, but do not find applicable to the facts of the present case. Even otherwise, in Criminal Administration of Justice, each case has to be decided on its own facts and circumstances and Courts are required to exercise jurisdiction independently, as held by the Hon'ble Supreme Court of Pakistan in the case of The State v. Haji Kabeer Khan reported as PLD 2005 Supreme Court 364 and Muhammad Faiz alias Bhoora v. The State and another reported as 2015 SCMR 655.

10. Before parting with the order, I would like to make it clear that in this matter, on the directions of this Court, Dr. Ghulam Muhammad Sanjrani, Senior Medical Officer, Central Prison, Karachi, appeared and submitted the medical report showing that two bones of the right leg of applicant has been fractured, which requires surgery, however, he submitted that injury of the applicant is not detrimental to his life. Under the circumstances, Superintendent Central Prison, Karachi, is directed to provide all medical facilities to the applicant inside the jail premises and if the same facilities are not possible inside the jail premises, then applicant may be referred to any Government Hospital for his treatment under the law.

11. The above observations are tentative in nature and would not be influenced by the trial Court while deciding the case of applicant on merits. The bail application stands dismissed. ADN/M-145/Sindh Bail refuse