2003 P Cr (PLP)

Granted subject to all just exceptions.

2. The applicant Muhammad Akram seeks bail in Sessions Case No. 165 of 2000, Crime No.261 of 2000 lodged at Police Station Pak Colony. The case is pending for trial in the Court of 1st Additional Sessions Judge, Karachi West where the bail application on behalf of the applicant was moved, but the same was rejected vide order, dated 8‑8-2002 by the trial Court. The prosecution case, as stated in the F.I.R. is that on 3‑12‑2000 at about 6‑00 p.m. three persons entered into the gate of G.N. Textile Mill, Haroonabad, Karachi, two of them were having T.T. pistols with them. They made to sit the Mill employee Qamar and Abid in a corner, other three persons came inside with a Truck No.J.T.9459 other two remained at the gate and remaining four persons removed about 50,000 meters of medical net cloth and loaded the same on the truck and went away. Employee Qamar Zaman accordingly informed the complainant Abid Baig who lodged the F.I.R. on 8‑12‑2000 against six unknown persons. The bail application was filed in the trial Court, which was rejected and against which order Criminal Bail Application No.541 of 2002 was filed in this Court, which was also dismissed vide order, dated 27‑5‑2002, passed by my learned brother Mr. Justice Ghulam Nabi Soomro. Hence, this application. It is contended by the learned counsel that the applicant/accused is rotting in jail and prosecution witnesses are not turning up and the process‑server has returned the process with the endorsement that whereabouts are not known. The process‑server Ali Gohar Soomro was examined on 19‑11‑2001 and no progress has been made thereafter. It is further urged by the learned counsel that the other co‑accused have been released on bail by the trial Court and rule of consistency be taken into consideration and the applicant/accused be released on bail. Learned counsel in support of his arguments has relied upon the case of Zahid Hussain Shah v. The State PLD 1995 SC 49, Naveed v. The State PLD 2002 Kar. 320, Nazeer Nadeem v. The State 2002 PCr.LJ 160, Khadim Hussain v. The State 1994 PCr.LJ 1408 and Muhammad Bin Yasir v. The State 1991 PCr.LJ 1217. Learned counsel for the State has opposed the bail application mainly on the ground that previous bail application filed by the applicant/ accused was dismissed by this Court vide order, dated 27‑5‑2002 and no fresh material was placed before the trial Court for seeking bail. It is further urged by the State Counsel that the direction be issued to the trial Court to record evidence of complainant and other witnesses and if the said witnesses are not coming forward on the basis of summons, the trial Court can issue process in the shape of bailable warrants and non‑bailable warrants in order to procure the attendance of such witnesses. I have heard the learned counsel for parties, and also perused the record and case‑law cited by the learned counsel for applicant/accused. The operative part of the bail rejection order, dated 27‑5‑2002 is reproduced hereinbelow:‑‑ "There is evidence on record to the effect that the applicant was identified by at least two P. Ws. who were not stated to be hostile to the applicant. No reason is shown for their false implication by the identifying witnesses. The alleged offence falls within the prohibitory clause. The applicant has rightly been refused bail by the learned trial Court. The application is accordingly dismissed. Such Criminal Bail No.541 of 2002 was dismissed by a short order, dated 20‑5‑2002 and these are the reasons for the same." The applicant/accused was arrested in the abovesaid crime on 7‑2‑2001 and identification test was held through P.W. Abid and Qamar and the place of incident was pointed out from where the robbed property was recovered. The rule of consistency is not applicable as the co‑accused Allah Ditta was released on bail as there was no identification by the eye‑witnesses. The order, dated 27‑5‑2002 was not challenged before the Honourable Supreme Court of Pakistan and, therefore; no further view can be extended by this Court to accept the bail plea. There is sufficient evidence with the prosecution in respect of accomplicity of the applicant/accused. The trial Court has framed the charge against the accused and tried to proceed with the case by issuing the bailable warrants. There is no material to show that applicant/accused has been involved on the basis of enmity. Resultantly, bail application is dismissed. The trial Court is directed to proceed with the case expeditiously and record the evidence of complainant Abid Baig and other prosecution witnesses without further delay. The trial Court is also directed to intimate the progress of each date of hearing to the Member Inspection Team. H.B.T./M‑526/K Bail application dismissed.