2017 PLP 225 (YLRN)

SHAHNAWAZ TARIQ, J.

Through captioned post-arrest bail application, applicant Zahid Hussain has impugned order dated 25.02.2016, passed by the Court of learned VII-Additional Sessions Judge, Karachi West, whereby his earlier bail application was declined.

2. Necessary facts spelt out from instant application are that complainant lodged FIR on 08.08.2015, at 2200 hours, that on 28.07.2015 during night hours, when complainant and his family members were sleeping, 9 boys by introducing themselves as police officials entered into his house, out them two Baloch, two Bangali and rest were speaking in Urdu. Accused robbed his Laptop, 9 mm pistol with 50 bullets, one Laptop of his brother in law, CNIC, Rs.12,000/- cash, two gold Bangles, two gold sets, prize bonds worth Rs.1,50,000/-, six mobiles sets and fled away. Complainant informed 15 police and police officials inspected the house, hence instant FIR.

3. Learned counsel for applicant contended that applicant is innocent and has been falsely implicated in case by the police with mala fide intention; that names of applicants are not mentioned in FIR; that charge has yet not been framed by the learned trial Court. Learned counsel further contended that no identification parade of applicant was held before the learned Magistrate, hence question of identification and recovery is highly doubtful.

4. While controverting the above submissions, learned A.P.G vehemently contended that on pointation of applicant, police recovered Rs.50,000/- cash and one Mobile set from his house; that role assigned to co-accused Muhammad Kashif to whom this Court has already granted bail vide order dated 12.01.2015 in Cr. Bail Application No. 1600/2015, is quite different, hence applicant is not entitled for grant of bail.

5. Complainant and his counsel are called absent. On the last date of hearing, this matter was adjourned and fixed for today with their choice, but today there is no intimation regarding absence of complainant as well as his counsel.

6. Heard arguments advanced by learned counsel for applicant, learned A.P.G. and perused the material available on record which reflects that incident occurred on 28.07.2015 at 0530 hours, while FIR has been lodged on 08.08.2015 at 2200 hours, with the delay of 11 days for which no plausible explanation has been furnished by the complainant. Admittedly, names and face descriptions of culprits are not mentioned in FIR and applicant was not known previously to the complainant and incident was also occurred during the night hours, thus identification parade of applicant before the Magistrate was essential but same was not done. Per averments of Challan, Investigating Officer recovered Rs.50,000/- cash and one mobile set on pointation of applicant from his house, while conversely, Rs.12,000/- cash was robbed from the house of complainant, which is controverting to the allegations leveled in FIR. Applicant was arrested on 17.09.2015 and during period of nine months, charge has not been framed, hence commencement of trial is yet not in sight which is also utter violation of fair trial. Offence under section 395, P.P.C. is punishable for imprisonment for life or 10 years and not below 4 years and fine. It is well-settled that while examining the question of bail, Court has to consider the minimum aspect of sentence provided for the alleged offence in schedule. Considering the peculiar facts and circumstances of instant case, there is no possibility of awarding maximum sentence to applicant for the alleged offence. Co-accused Muhammad Kashif has already been granted bail by this Court vide order dated 12.01.2016, in Cr. Bail Application No.1600 of 2015 but complainant has not agitated the said order by filing application for cancellation of bail. It is significant to mention that when name, identification marks and face description of accused are not mentioned in FIR and incident occurred during night hours, identification parade of accused before the Magistrate was essential and in absence of such parade, bail shall be granted as matter of right and confession of accused before the Investigating Officer and subsequently, recovery of some articles without any specific description on his pointation will not deprive the accused from the extension of concession of bail.

7. As the sequel of above discussion, applicant has succeeded to make out a case for grant of bail on the ground of further inquiry as contemplated under section 497(2), Cr.P.C. Consequently, applicant is admitted to post-arrest bail on furnishing solvent surety in the sum of Rs.1,00,000/- (One Lac) and P.R. bond in the like amount to the satisfaction of learned trial Court. The observations made supra are tentative in nature and learned trial Court shall decide the case strictly on merits. WA/Z-15/Sindh Bail granted.