2017 P Cr (PLP)

SHAHNAWAZ TARIQ, J.

Through captioned post arrest bail application, applicant Muhammad Farooq has impugned order dated 15.12.2015 passed by the Court of VI-Additional Sessions Judge, Karachi-South, whereby his earlier bail application was declined.

2. Necessary facts narrated in instant application are that complainant is working as salesman in jewelry shop of his uncle Saleem Mitha at Sarafa Bazar, Karachi. On 25.08.2015 he, his uncle Saleem and salesman Hussain were present in the shop. At about 2.15 p.m. three persons apparently seem to be Urdu speaking aged about 30/35 years, out of them one was wearing pant shirt, and others were in shalwar-kameez, having baerd, entered into their shop and asked his uncle to show a gold chain, and his uncle replied that he has no gold chain, in the meantime, the person wearing pant-shirt took out pistol from his hand bag, to which his uncle caught hold pistol but accused started firing and his uncle sustained bullet injuries on his both legs as well as left shoulder and Hussain also received bullet injuries on his buttocks and culprits fled away from the spot, hence instant FIR.

3. Learned counsel for applicant contended that applicant is innocent and has been falsely implicated by the complainant at the behest of the police, that neither name of the applicant is mentioned in FIR nor any specific role has been assigned to him; that no recovery has been effected from the applicant nor identification parade was held before the Magistrate. Learned counsel further contended that applicant was arrested in another crime and he was involved in the present crime; that applicant has been enlarged on bail in the connected case. Learned counsel has relied upon the cases.

4. While controverting the above submissions, learned A.P.G. contended that the applicant has caused bullet injuries during incident while he attempted to commit robbery in the jewelry shop; that complainant had identified the applicant at PS to be a real culprit and he has no enmity with the accused; hence applicant is not entitled for grant of bail.

5. Heard arguments advanced by learned counsel for the parties and perused the material available on record which emanates that the name and features description of applicant are not transpired in FIR. Applicant was apprehended in FIR No. 339/15 for the offence of police encounter and FIR No. 340/2015 for recovery of unlicensed weapon. Conversely, identification parade of applicant was held before the Magistrate but prosecution has failed to furnish any profound explanation that as to why identification test of accused through eye-witnesses was not held when his name was not transpired in FIR, and in absence of any tangible evidence regarding his involvement in commission of alleged offence, when he was not arrested at the spot, mere confessional statement of applicant before the Investigating Officer is not admissible under the law when he was arrested in another case, requires further inquiry.

6. Applicant is behind the bars for the period more than one year, but prosecution has failed to examine a single witness to substantiate the charge against the accused. Admittedly investigation has been concluded and challan has been submitted before the trial Court, therefore, physical custody of accused is not required at this juncture for the purpose of investigation. Prosecution has failed to place any special circumstances that applicant is previously convicted or his enlargement would cause tampering with prosecution evidence. In the case of Jamshaid Asmat alias Sheedu v. The State (2011 SCMR 1305) the Hon'ble Supreme Court has held that "accused was not named in FIR for incident of stolen truck and trolley and nothing was available on record of investigation to connect the accused with alleged offence. Investigation of case was finalized and challan was submitted. Case against the accused called for further inquiry into his guilt, bail was allowed".

7. Considering the above circumstances, applicant has succeeded to make out the case for grant of bail on the ground of further inquiry as envisaged in section 497(2), Cr.P.C. Consequently, the applicant is enlarged on post-arrest bail on furnishing solvent surety in the sum of Rs.200,000/- (Rupees Two Lacs only) and P.R bonds in the like amount to the satisfaction of learned trial Court. The observations made above are tentative in nature and learned trial Court shall decide the case strictly on merits. Bail application stands disposed of in the above terms. WA/M-188/Sindh Bail granted.