2005 PLP 657 (YLR)

Syed Hashmat Hussain Naqvi for the State. Muhammad Mansha, S.I. Through instant petition, the petitioner has sought for post‑arrest bail in case F.I.R. No. 234 of 2003 dated 24‑9‑2003 under sections 392/411, P.P.C. registered at Police Station, Seetal Mari, Multan.

2. The allegation against the petitioner is that on 24‑9‑2003 when the complainant was coming on motorcycle (CD‑70) towards Multan when he reached pull head Sudhanpur, two persons chased him and stopped the complainant on gun point and forcibly snatched the motor‑cycle and an amount of Rs.600 along with driving licence along with National Identity Card.

3. Learned counsel for the petitioner submits that the petitioner is not named in the F.I.R. He has been involved in the instant case by the local police only to show its efficiency with the collusion of the complainant. Further submits that no identification parade was conducted and in the absence of identification parade the case against the petitioner became, of doubtful nature, and fell within the purview of subsection (2) of section 497, Cr.P.C.; that nothing was recovered from the petitioner but due to the influence of the complainant, fake recovery had been planted against the petitioner; that petitioner had been involved in the instant case only on the basis of statement made by his co‑accused. Lastly submits that there is absolutely no evidence against the petitioner for snatching the motor‑cycle, offence under section 392, P.P.C. is not attracted against him and maximum case against the petitioner is mere recovery of the alleged motorcycle which falls under section 411, P.P.C. Out of two main accused in the F.I.R. one has been murdered and Allah Rakha the co- accused is behind the bars involved in a murder case and the petitioner is involved in this case that they have handed over the said motor‑cycle for the sale to the petitioner.

4. Conversely the learned State counsel has opposed the bail application.

5. Perusal of the record shows that there is nothing on record which shows that identification parade was held wherein the petitioner was picked up by the complainant as one of the accused persons of the case. Admittedly petitioner is not named in the F.I.R. In the F.I.R. the allegation against the petitioner was that on 24‑9‑2003 at about 10‑30 a.m. two unknown persons at pistol point deprived the complainant from motorcycle CD‑70 and cash Rs.600, driving licence and Identity Card. In absence of any identification parade it cannot be said definitely that the petitioner was involved in snatching the motorcycle and cash from the complainant. It was on the statement of one of the co‑accused in a murder case namely Allah Rakha who has disclosed that he has handed over motorcycle in question to Iiaq Nawaz petitioner for sale purposes, from where the police took the same into the custody under section 550, Cr.P.C. In this view of the matter, section 392, P.P.C. was not attracted at all in case of the petitioner. Only the offence which was attracted against the petitioner was that of under section 411, P. P.C. punishment for which is three years and does not fall within the ambit of prohibitory clause of section 497, Cr.P.C. The prosecution is yet to collect more incriminating material in order to connect the petitioner with the commission of the said, offence under section 392, P.P.C. At present at the most he can be charged under section 411, P. P. C.

6. After going through the record I am of the view that the case of the petitioner needs further inquiry and falls under the second proviso of section 497, Cr.P.C. Bail application is accepted and petitioner is admitted to bail subject to furnishing of bail bond, in the sum of Rs.1,00,000 with one surety in the like amount to the satisfaction of the learned concerned Judicial Magistrate. N.H.Q./H‑38/L Bail granted.