1999 P Cr (PLP)

NASIR‑UL‑MULK, J.‑‑‑ On 12‑2‑1998, at around 3‑00 p.m., 4 to 5 persons, duly armed, attacked a van belonging to the National Bank Branch, Tijarat Ganj, D.I. Khan, in which cash was being carried after collection from other branches. Apart from the driver, Kifayatullah, Senior Assistant, National Bank and a Guard Constable, Ghulam Hussain, armed with a kalashnikov, were also riding in the van. It .is alleged that the dacoits, after successfully disarming the Constable and seizing his weapon, looted a cash of Rs.forty lacs belonging to the Bank. After firing in the air, the dacoits made good their escape in a pick‑up parked nearby. A case was registered under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and section 411/353/120‑B, P.P.C. read with section 13 of the Arms Ordinance, at Police Station City, Dera Ismail Khan, on the information of Kifayatullah, the Senior Assistant against unknown persons. On some undisclosed information, the police arrested Muhammad Saleem son of Ramzan, resident of Garah Mithu, Tehsil and District Tank, and allegedly, on his pointation, recovered on 1‑3‑1998 Rupees 3,75,000 cash from his house and the kalashnikov seized by the dacoits from the guard of the National Bank. That subsequently on 6‑3‑1998, while Muhammad Saleem was taken in police custody, another amount of Rs.9,80,500 was recovered again from the house of Muhammad Saleem. Meanwhile, on 27‑2‑1998, one Saifullah son of Jangi Khan, resident of Tank, was arrested. He made confessional statement on 13‑3‑1998 in which he narrated how the dacoity was planned and how he and his other co‑accused looted the money and disposed it of, Muhammad Saleem has applied to this Court for bail after being declined the same by the lower Court.

2. The learned counsel appearing for the petitioner argued that the confessional statement of Saifullah is to be excluded from consideration even at bail stage, because in response to the question put to him by the Magistrate regarding confession, Saifullah had stated that he was pressurized by the Investigating Agency. He next argued that even in the confessional statement, the name of Muhammad Saleem does not appear and that at best the petitioner can be‑charged for an offence under section 411, P.P.C. The learned counsel appearing for the National Bank, the complainant in this case, submitted that the recovery of the kalashnikov and cash, duly carrying the stamp of the National Bank, is sufficient to connect the petitioner with the commission of the crime. That there was no reason for the prosecution to plant a huge sum of nearly fourteen lacs on the petitioner. The learned Assistant Advocate‑General also opposed the bail on the ground of the petitioner's direct involvement in the dacoity.

3. In the F.I.R., no one is charged because the dacoits were not known to the three occupants of the Bank's van. For the first time the names of the dacoits appeared in the confessional statement of Saifullah. The name of the petitioner does not find mention in the confessional statement at all, either being a party to the conspiracy, or as a participant in the dacoity, or the recipient of the looted money. It also does not seem to be the prosecution's case that the petitioner took part in the dacoity, because after the arrest of the petitioner, no identification parade was held so that the three occupants of the vehicle could identify him as one of the dacoits. It is also not the prosecution's case that the dacoits haul muffled their faces. Thus, the only case against the petitioner appears to be receiving and retaining the stolen cash, which is punishable under section

411. P.P.C. with imprisonment upto three years. Likewise, section 13 of the Arms Ordinance entails punishment upto seven years imprisonment and which also does not fall under the restrictive limb of section 497, Cr.P.C.

4. Therefore, without highlighting upon merits of the case, this application is allowed and the petitioner, is admitted to bail provided he furnishes bail bonds) in the sum of rupees five lacs with two sureties, each in the like amount, to the satisfaction of the Additional Registrar of this Bench, who shall see that the sureties are local residents of D.I. Khan District, resourceful and men of sufficient means. Their property documents/copies of identity Cards shall also be obtained for record. Q.M.H./M.A.K./278/P Bail allowed