2018 PLP 143 (YLRN)

KHADIM HUSSAIN M. SHAIKH, J.

Through this application, applicant Zahid Mehmood has sought his release on bail in case culminated from FIR No.149/2016 for offence under section 395,109,114,34 P.P.C. of Police Station Pakistan Bazar, after his bail plea has been declined by the learned VII-Additional Sessions Judge, Karachi West by dismissing his bail application bearing No.1027 of 2016 vide order dated 25.06.2016.

2. Briefly the facts of the case are that one Azizullah Manager Operation, has lodged the subject FIR on 18.5.2016, stating therein that on 16.5.2016, being Manager Operation, he was present on his duty at the Habib Bank Ltd. Branch Pakistan Bazar when at about 5:58 p.m. he found two persons, out of whom one was having pistol in his hand and the other one was beating the security guard Zahid and then both the persons on show of weapons locked them in safe-room. After 10 minutes when they came out, the complainant found Rs.34,35150/- missing. In all there were five culprits, who had committed the offence. During interrogation in investigation security guard namely Zahid Mehmood (the applicant), stated that one week prior to this crime, he and co-accused namely Nadeem Khan, Raja Rafaqat, Waseem Khan and Ehsan alias Shani had jointly plotted the plan of this dacoity at his dera located in Itehad Town. Then on the pointation of applicant Zahid Mehmood, co-accused Muhammad Waseem Khan was arrested and an amount of Rs.10,12000/- was recovered; mobile phone record of the accused persons leading one piece of information to another was also collected. After investigation the applicant and co-accused Muhammad Waseem Khan were sent up with the challan to face their trial, showing the rest accused as absconders therein.

3. The learned counsel for the applicant has mainly contended that the applicant is innocent and he has been falsely implicated in this case by the complainant; that the admissions made by the applicant before police during investigation are inadmissible in evidence as per Article 38 of Qanun-e-Shahadat Order, 1984; and, that there is delay of two days in lodging the FIR without proper explanation thereof. He, therefore, prays that the applicant may be granted bail. He has placed his reliance on case of Ali Akbar v. The State (2011 PCr.LJ 445), the case of Shehzore and another v. The State (2006 YLR 3167) the case of Syed Arshad Ali Shah Bukhari v. The State and others (2011 SCMR 1644) the case of Akhtar Ali Ghowada v. The State (2015 MLD 1661) and the case of Mevo Rind v. The State (2012 YLR 151).

4. Conversely, learned Additional Prosecutor General, Sindh has opposed the grant of bail to the applicant, contending that the applicant is involved in this heinous offence of bank dacoity; that on the pointation of applicant Zahid Mehmood who is admittedly a security guard of Habib Bank Ltd. Branch Pakistan Bazar Karachi, co-accused Muhammad Waseem Khan was arrested and recovery of Rs.10.12000/- was effected. He, therefore. prays that the bail application may be dismissed.

5. I have considered the arguments advanced by the learned counsel for the applicant as well as learned Additional Prosecutor General Sindh for the State and have also gone through the material available on record with the assistance of learned A.P.G.

6. Admittedly applicant Zahid Mehmood is an employee of Habib Bank Ltd. Branch Pakistan Bazar Karachi and was on duty as security guard at the time of the incident; that the applicant was not initially named in the FIR as one of the culprits, which itself shows that the complainant had no intention to falsely implicate the applicant in this crime, otherwise very conveniently the applicant could be named in the subject FIR, which was lodged by the complainant on second day of the incident after apprising the high-ups of the fact of this incident; that no doubt admission of accused before the police is inadmissible in evidence under Article 38 of Qanun-e-Shahadat Order, 1984, when no other material connecting the accused with the crime is available with the prosecution; that in this case, on the pointation of applicant/accused Zahid Mehmood, co-accused Muhammad Waseem Khan was arrested and recovery of huge amount of Rs.10,12000/-, was effected, which corroborates the prosecution case, and, hence Article 38 of Qanun-e-Shahadat Order, 1984 is patently not applicable to the case in hand; that it needs no reiteration that at the bail stage deeper appreciation of the evidence cannot be undertaken and the evidence of the nature, which is normally available in an ordinary criminal case, cannot be expected in the cases like the case one in hand as the culprits, who are involved in such offences, particularly when the employees of an Institution deployed on security there, are also involved therein, commit such offences in more organized manner by plotting earlier plans, as is alleged to have been done in the instant case; that the learned counsel for the applicant has not been able to point out anything from the record which could suggest that the complainant and other P.Ws have any animosity against the applicant, therefore, at this stage, there seems to be no question of false implication of the applicant in this case; that there is no denial of the commission of the alleged offence; that the question of delay in lodging the FIR, when the applicant/accused is not named therein, is immaterial; and, that the offence with which the applicant stands charged falls within the prohibitory clause of Section 497, Cr.P.C., which dis-entitles the applicant to the grant of bail.

7. The cases relied upon by the learned counsel for the applicant being distinguishable on the facts and circumstances than that of the case one in hand, are not applicable in as much as in case of Ali Akbar (supra), no recovery was effected from the applicant or on his pointation, in case of Shehzore (supra) there was recorded enmity between the parties and such civil litigation based on Suit No.151 of 2005 was pending between the parties in a Civil Court, in case of Syed Arshad Ali Shah (supra) four out of eight accused persons nominated in the FIR had been declared by the investigating agency to be innocent and it was a case of an encounter between the police party and the culprits in which nobody had sustained even scratch, in case of Akhtar Ali Ghowada (supra) a dacoity was allegedly committed in the godown of complainant, who lodged such report on the information given to him by P.W. Muhammad Asim, who was deployed there as watch man and in the case of Mevo Rind (supra) the FIR was lodged after 50 days of the alleged incident with the allegations that 100 mounds chaff was allegedly taken away by the accused on a gun point in a tractor trolley, setting on fire the remaining chaff lying at the land of complainant and there was dispute between the parties over a piece of land and thus none of the cited cases is helpful for the applicant.

8. In view of what has been stated above, I am of the considered opinion that the applicant has failed to make out his case for grant of bail. Accordingly, the bail application, which merits no consideration, is liable to be dismissed.

9. Above are the reasons of short order announced by me on 08.11.2016, whereby the instant bail application was dismissed.

10. Needless to observe that the observations made hereinabove are tentative in nature only for the purpose of deciding bail application, and the same shall not influence the learned trial Court while deciding the case. WA/Z-6/Sindh Bail refused.