P L D 2002 Karachi 322 (PLP)

Date of hearing: 24th December, 2001. This bail application has been filed on behalf of Mashooq Ali and Muzzafar kli who are facing trial in Sessions Case No.34/2001 as both the applicants were arrested on 11‑6‑2001 in Crime No.40/2001. The said incident taken place on 11‑6‑2001 at 21‑00 hours and the report was lodged on the same day at about 22‑15 hours with.Police Station C Section of District Sukkur under section 1712 Offences Against Property (Enforcement of Hudood) Ordinance, 1979. The bail application was moved in the trial Court which was dismissed on 10‑11‑2001 by the learned Sessions Judge, Sukkur. The similar bail application has been moved before this Court on the ground that the trial Court has recorded the evidence of complainant who has not supported the prosecution case as being eye‑witness of the incident. The brief facts as depicted in the F.I.R. are that on 11‑6‑2001 complainant Muhammad Ismail lodged his F.I.R. with Police Station Section Sukkur wherein he has stated that he is working as. Chowkidar in Laxen Tobbaco Company situated near Local Board Office, Sukkur, his duty hours are from 6‑00 p.m. to 9‑00 p.m. on 11‑6‑2001 while he was on duty when at about 9‑00 p.m. two persons intruded in the office, one was armed with pistol and the other person was empty‑handed. It was alleged that the culprit who was armed with pistol pointed the same at the complainant and directed him to keep quiet whereas the culprit who was empty‑handed demanded keys and cash. At this moment a Police Mobile was crossing in front of the office and on commotion the police stopped the Mobile and the culprits tried to escape from the scene of offence but both of them were apprehended, at the spot. On enquiry one culprit who was armed with pistol disclosed his name as Mashooq Ali having pistol of .30 bore alongwith magazine was secured from.his possessions which was in working condition. The other culprit who was empty‑handed disclosed his name as Muzzafar Ali the police party brought the abovenamed culprits alongwith the recovered pistol at Police Station where the F.I.R. was lodged. After usual investigation the charge‑sheet was filed in the Court having jurisdiction. The bail application was moved on behalf of the applicants before the trial Court but the same was rejected and thereafter the bail application being Cr.B.A. No.S‑460/2001 was filed before this Court which was also dismissed vide order dated 21‑8‑2001 by my brother Mr. Justice Muhammad Afzal Soomro, J. with a direction to the trial Court to conclude the trial expeditiously. Pursuant to the direction of this Court, the trial Court recorded the evidence of complainant and thereafter the applicants/accused moved bail application before the trial Court on the ground that the complainant has not implicated the applicants/accused in the said offence but the bail plea was dismissed by the trial Court on the ground that the evidence of complainant cannot be evaluated at the stage of bail as the same would affect the whole case whereas sufficient evidence is yet to be recorded and there is recovery of weapon against the applicants/accused and bail application was dismissed by the impugned order which has been challenged in this Court through the present bail application. It is contended by the learned counsel for the applicants/accused that the complainant who is the main witness of the incident has not supported the prosecution case as the applicants/accused were arrested by the police of the incident but the complainant failed to identify them during the trial while recording the deposition of the said witness. It is further urged by the learned counsel that nothing was robbed from the complainant at the time of incident and trial Court had wrongly rejected bail application as there is no evidence against the applicants/accused to connect them with the crime. Mr. Habibullah Shaikh learned counsel for the applicants has relied upon case of Muhammad Arif v. State reported in 1999 MLD 939, Muhammad Ismail v. Muhammad Rafique and others reported in PLD 1999 SC 585 and case of Malik Amanullah v. State reported in 1998 PCr.LJ

914. Mr. Mumtaz Ali Siddiqui learned counsel on behalf of the State has frankly conceded for grant of bail and submits that star eye‑witness has riot supported the prosecution case and it is relevant for the purpose of assessment whether the accused had made out a ground for bail or not. He further submits that the witness examined by the trial Court has been declared hostile and there is no evidence before the trial Court to consider the involvement of the applicants/accused in the said offence. I have considered the arguments of the counsel so advanced and it has been observed in the case of Muhammad Ismail v. Muhammad Rafique and others in which the Court finds that two essential conditions contained in section 497, subsection (2), Cr.P.C. are satisfied the accused shall become entitled to right of bail. In view of section 497(2), Cr.P.C. which reads as follows: ‑ "(2) "(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non‑bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall pending such inquiry, be released on bail, or at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided." In the present case the deposition of complainant so recorded by the trial Court there are sufficient, grounds for further enquiry as the applicants have not been implicated in the said deposition therefore the applicants/accused had been entitled to be released on bail. In view of dicta laid down by the Hon'ble Apex Court prima facie the complainant has not implicated the applicants/accused in the commission of case at the time of incident. The view of the trial Court was not based on the merits of the case but the Court has avoided to discuss the evidence of complainant while deciding the bail application, and in view of non -availability of evidence the Court has no option but . to release the applicants/accused on bail in view of subsection (2) of section 497, Cr.P.C. I The scope of this proviso is available during the course of investigation, enquiry or trial as the case may be. Apparently the trial Court has yet to record further evidence for deciding the whole case but tentatively non- availability of evidence with the prosecution which is tentative nature and then bail application cannot be rejected. The applicants/accused are in jail since 11‑6‑2001 and even the prusecution has to produce the other witnesses as mentioned in the Calendar of the charge‑sheet. Admittedly nothing has been robbed from the complainant as mentioned in the F.I.R. but it was an attempt of robbery and do not fall within the prohibitory clause of section 497, Cr.P.C. In view of the foregoing the applicants/accused have made out a case for grant of bail. Resultantly the bail is granted to the applicants/accused in the sum of Rs. one lac each and P.R Bond in the like amount to the satisfaction of trial Court. N.H.Q./M‑309/K Bail granted.