2012 PLP 211 (YLR)

MUHAMMAD TASNIM, J.

Applicant Asif son of Firdous Ali is booked in Crime No.185 of 2011 at P.S. Azizabad registered under section 392/34, P.P.C.

2. In the first place the applicant applied for bail before V-Additional Sessions Judge, Karachi Central, who vide his order dated 25-8-2011 dismissed the bail application. Against the aforesaid order present bail application has been filed.

3. Facts as set out in the F.I.R. are that on 8-8-2011 complainant Syed Abdul Ghani has lodged F.I.R. stating therein that on 7-8-2011 he was going on his motorcycle bearing Registration No.KAE 5249 from Ayesha Manzil to Liaquatabad and when reached at Karimabad Old Market where people were protesting over load-shedding and they have also set a blaze on road. He stopped his motorcycle near over-head bridge when at about 8-00 p.m. three young boys came near him and one boy who was of tall height took out pistol and directed him to hand over whatever in his possession and thereafter they snatched his Nokia Mobile Phone, cash Rs.5/6 thousands, ATM Card, identity card, document of his motorcycle and duplicate Identity Card, hence this F.I.R.

4. Learned counsel for the applicant in support of his bail application has submitted that applicant was not nominated in the F.I.R. He says that no identification parade before the concerned Magistrate has been held. He says that from the possession of applicant allegedly one Nokia telephone was recovered which as per prosecution belongs to the complainant. Learned counsel says that neither the description of Nokia telephone has been given in the F.I.R. nor the same appears in the memo of recovery. Learned counsel further says that alleged crime was committed on 7-8-2011 at 2030 hours whereas the F.I.R. was lodged on 8-8-2011 at 0035 hours. Learned counsel says that applicant was not arrested from the spot and no recovery was effected from the applicant at the spot. However, as per prosecution at about 3-30 in the night of 8-8-2011 from a place near to the place of occurrence the present applicant was allegedly arrested and from whom one Nokia telephone was allegedly recovered. Learned counsel further says that no other article allegedly snatched from the complainant as mentioned in the F.I.R. was recovered from the applicant or from co-accused. He says that case of prosecution is doubtful for the aforesaid reason as none of the articles mentioned in the F.I.R. was recovered from the applicant except one Nokia telephone description whereof was not known to the prosecution. In support of his contentions learned counsel for the applicant has placed reliance upon the cases of (1) MUHAMMAD SULEMAN V. RIASAT ALI AND ANOTHER (2002 SCMR 1304), (2) MUHAMMAD RAFIQUE V. THE STATE (1997 SCMR 412), (3) ATTA MUHAMMAD V. THE STATE (2004 PCr.LJ 1431) and (4) SYED SAEED SHAH V. THE STATE (PLD 2002 KARACHI 98).

5. On the other hand, learned APG has vehemently opposed the grant of bail and has submitted that in the night of 8-8-2011 at about 3.30 applicant along with co-accused Adnan was arrested and two Nokia telephone and one China mobile telephone were recovered from the applicant but from the co-accused one pistol was recovered. He says that the instant crime is against the society and if the applicant is enlarged on bail there is apprehension that he will commit the similar offence.

6. I have heard the learned counsel for the parties and have perused the record.

7. It is admitted position that name of applicant does not appear in the F.I.R. Admittedly, no identification parade has been held before the Magistrate. Description of allegedly recovered telephone from the applicant has not been mentioned either in the F.I.R. or in the recovery memo. It is also an admitted position that telephone SIM belonging to the complainant has not been recovered from the present applicant. It is also admitted position that none of the articles allegedly snatched from the complainant as per F.I.R. was recovered from the present applicant or the co-accused. All the aforesaid factors make the case of applicant of further enquiry in terms of subsection (2) of section 497 Cr.P.C.

8. In the case of MUHAMMAD SULEMAN (2002 SCMR 1304) the Hon'ble Supreme Court of Pakistan while dealing with the failure on the part of prosecution to hold identification parade before the Magistrate has observed as under:-- " ..Moreover, non-holding of identification parade in respect of respondents after the arrest brings his case within the purview of subsection (2) of section 497, Cr.P.C., as such he was rightly granted bail. The principles regarding the cancellation of bail are quite different from that of grant of bail."

9. In the case of MUHAMMAD REFIQUE (1997 SCMR 412) the name of accused person did not appear in the F.I.R. and identification parade was also not held, the Hon'ble Supreme Court of Pakistan while dealing with the above point has observed as under:-- "(4) Fact that petitioner is accused in a number of cases of robbery, is not sufficient to deprive him of his liberty. It has not come on record, as to why identification test of the petitioner through eye-witnesses was not held when his name did not appear in the F.I.R. Mere production by the petitioner before police of some cash alleged to have been obtained by robbery, in absence of any other evidence. In this respect the observations made in the case of Ishaq Masih v. The State (1993 SCMR 1322) are relevant."

10. Similarly, in the case of ATTA MUHAMMAD (2004 PCr.LJ 1431) a learned Single Judge of this Court (now Judge of Hon'ble Supreme Court of Pakistan) while dealing with the bail application where accused was not nominated in the F.I.R. and identification test of accused was held only by the police. Learned Judge while disposing of the bail application has dealt the issue with the following words:-- "I have carefully considered the arguments advanced by the learned counsel and perused the case record, which confirms the position as argued by Mr. Abdul Naeem. Memon that neither the applicant is a nominated accused in the F.I.R. nor after his arrest on 7-9-2003 any identification test has been held through the complainant or two other labourers who must have seen him at the time of occurrence Further the recovery of articles shown from the applicant is in respect of items of general nature for which it is yet to be seen whether the same would connect the applicant with the commission of crime or not."

11. Following the rule laid down in the above noted judgments it will be noticed that all the cases fully applicable to the case in hand for the reasons mentioned in paragraph 7 hereinabove which makes the case of applicant a case of further enquiry in terms of subsection (2) of section 497, Cr.P.C. Accordingly, the applicant/accused is admitted to bail on his furnishing solvent surety in the sum of Rs.100,000 (Rupees one hundred thousand) with P.R. bond in the like amount to the satisfaction of learned trial Court. H.B.T./A-119/K Bail granted.