1999 PLP 2529 (YLR)

The facts leading to the present application for bail are that the applicant/accused Amanat Ali alias Amir Ali is facing trial before learned Sessions Judge, Karachi (East) in a case under section 398/511, P.P.C. which has arisen out of F.I.R. No.59 of 1998 of Police Station Saudabad, Karachi (East).

2. The brief facts of the prosecution case, as disclosed in the F.I.R. lodged by complainant Muhammad Moin on 1‑6‑1998, are that on the fateful day at about 1‑30 p.m. he was in the room of his house when he heard cries of his daughter Sanobar. He came out from the room and saw that two boys were coming down from the stairs and one of them was armed with a T.T. Pistol and they had aimed it on the girl Sanobar and they were demanding the keys of the house. In the meantime, mobile of Saudabad Police Station reached and encircled the house and arrested the applicant/accused Amanat Ali and recovered a T.T. Pistol from his possession. The other two accused succeeded in running away from the Vardat. Their names were disclosed to be Tipu and Aqeel. After usual investigation the accused were sent up to stand trial.

3. The applicant/accused applied for bail before the trial Court but it was refused by impugned order, dated 7‑8‑1998.

4. I have heard Mr. Muhammad Sabir Haider, ' learned counsel for the applicant/accused and Mr. Muhammad Saleh Punhwar, leanied counsel on behalf of A.‑G. for the State. Latter conceded to the grant of bail.

5. The perusal of record shows that during broad daylight at about 1‑30 p.m. the applicant/accused, only armed with T.T. Pistol, barged into the 'house of complainant alongwith his campanion and at the point of fire‑arm by putting the inmates of the house in fear of death demanded the keys of the house in order to commit robbery. In the meanwhile, mobile of police reached on the spot. The police party encircled the applicant/accused and arrested him. The fire arm alongwith loaded magazine containing two cartridges were recovered from his possession.

6. The contentions that the offence with which the applicant/accused was charged is not punishable with death or imprisonment for life; that the P.Ws. Muhammad Moin, Naeem Ahmed Qadri and Mansoor Naveed filed affidavits before the trial Court wherein they have exonerated the applicant/accused from the culpability of the charge and further that these P.Ws. have not supported the prosecution version in their statements recorded in case under section 13‑D of Arms Ordinance, Which' is offshoot of the present case and that challan was submitted after two months, therefore, applicant/accused is entitled to bail, are devoid of force.

7. It is not a rule of law that in every case, which is not punishable with death, imprisonment for life or ten years, bail must be granted. It is well‑settled that grant or refusal of bail depends upon circumstances of each case. The allegations made in the F.I.R. and in the statements of eye‑witnesses and other incriminating material in the hands of prosecution are to be looked into and after tentative assessment of all the material if the Court comes to the conclusion that a prima case is made out, Court can refuse bail.

8. The affidavits of the prosecution witnesses exonerating the applicant/accused are of no avail to the applicant/accused as voluntariness of those affidavits is yet to be tested at the time of trial. The order of Trial Court shows that apart from the statements of private witnesses there are statements of three policemen, who apprehended the applicant/ accused on spot. The statement of a policeman also cannot be ignored at this stage as a policeman is as good witness as any other person until and unless evidence is brought on record to discredit him. The factum of incident is not denied in the affidavits, stated to have been sworn by the prosecution witnesses stated hereinabove.

9. The authorities Muhammad Yasin v. The State (1999 PCr.LJ 1295), Tariq Bashir and 5 others v. The State (PLD 1995 SC 34), Syed Iftikhar Hussain Shah v. Syed Sabir Hussain Shah and 2 others (1998 SCMR 466) and Muhammad Javaid v. The State (1999 PCr.LJ 328), cited by the learned counsel for the applicant/accused are of no help to the applicant/accused as the facts and circumstances of the above cases are altogether different and distinguishable from the facts and circumstances of the present case.

10. The upshot of the above discussion is that the impugned order of the learned Sessions Judge does not suffer from any legal or factual infirmity and it is according to the settled principles of law, governing grant of bail in such cases. Resultantly, the application for bail merits dismissal and it is accordingly dismissed.

11. The observations made hereinabove are of tentative nature and they shall not, in any way, influence the trial Court while finally disposing of the case upon merits after the evidence of witnesses is brought on record at the time of trial. Q.M.H./M.AX/A‑331/K Bail refused.