2011 PLP 685 (MLD)

MUHAMMAD TASNIM, J.

The applicant Bago Umrani has filed this application seeking post-arrest bail, who is .required in F.I.R. Crime No.49 of 2010 Police Station 'B' Section, Sukkur registered for an Offence under section 17/3 Hudood Ordinance. Prosecution story is that the case was initiated on an F.I.R. lodged at the instance of complainant Muhammad Javed on 2-4-2010 at 1615 hours alleging therein that they have a jewelry shop in Sarafa Bazar Sukkur. On 25-3-2010 they went to Karachi for taking the gold wherefrom the complainant purchased the pair of bangles, chains etc. weighing 7 KGs 845 grams and 940 milli grams amounting to Rs.2,400,8946. He came at Sukkur by Sukkur Express Train. At railway station he was received by Khursheed and Abdul Ghaffar. All of them sat in the rickshaw and got them off at Phuwara Chowk. They proceeded by toot to the house and as soon as at about 0930 hours reached in front of gate of the City Court, found that three persons duly armed with pistols arrived on the motorcycle and got them over powered. One of them took out pistol and pointed it on them whereas remainders robbed away all the golden ornaments from Muhammad Javed. All the three accused sat on the motorcycle and started running away. They were followed. It was seen that one Suzuki Alto Car of Silver colour, bearing registration No.AHC-729 wherein three persons were sitting, was standing. The accused stopped their motorcycle adjacent to the said car. Two of them got them in the said car, which then went towards Ashrafia Madarsa, whereas motorcycle proceeded towards Mehran View Plaza, hence the F.I.R. was lodged as stated above. The learned counsel for the applicant has argued that there is unexplained delay in lodging of F.I.R. He further argued that the name of the present applicant is not mentioned in the F.I.R. He also argued that no descriptions of any person were shown in the F.I.R. He also further argued that no identification parade as required under the law was ever held by the police. He submitted that the present applicant was arrested by the police prior to the above incident though the applicant was not required in any case. For his recovery proceedings under section 491, Cr.P.C. were initiated before this Court and on receipt of the notice of such proceedings, the police has planted the present case upon the present applicant. He further submitted that no recovery whatsoever has been affected from the applicant. He also submitted that the learned Sessions Judge has not adverted to the aforesaid submissions of the learned counsel though argued before him. In support of his contention on the point of delay and where no identification parade was made, he relied upon the case reported as Barkat Ali v. The State (2006 MLD 431). In the reported case the accused was under custody in another case in same Police Station; hence it was observed that the possibility can not be ruled out that the accused might have been shown to complainant by the police at the Police Station prior to holding of identification parade and implicated him in that case. In such a situation when there is doubt such benefit is to be extended to the applicant. The learned counsel has also relied upon a Division Bench judgment of this Court reported as Sagheer Ahmed v The State (1999 MLD 1258) wherein the learned Division Bench of this Court has granted bail to the applicant on the ground that accused was not known to the complainant previously and accused was not put to the test of identification parade in the circumstances, applicant in the reported case was admitted to bail. The learned counsel has further placed reliance on the case of Mithal v. The State (2005 PCr.LJ 630). In the reported case accused was picked-up in the identification parade without any role being assigned to him. In the circumstances, such an accused was admitted to bail. The learned counsel has further strengthened his above arguments by relying upon the judgment reported as Meenhal and another v. The State (2007 MLD 214). On the other hand the learned counsel for the complainant has vehemently opposed the grant of bail and has submitted that order passed by the learned Additional Sessions Judge is perfectly correct and does not call for any interference by this Court. He further argued that all the material available before the learned Judge was appreciated and after taking into consideration all the material, bail was rightly rejected by the learned Additional Sessions Judge. He further stated that on the pointation of the present applicant, other accused namely Mushtaq was arrested and stolen articles were also recovered from said accused. He further stated that the arrest of the present applicant was made on 12-4-2010 and thereafter further statement of the complainant was recorded on 17-4-2010 wherein the complainant has specifically implicated the present Applicant. Lastly he submitted that as the case falls under the Prohibitory Clause, the present applicant is not entitled to bail. On the other hand learned A.P.-G. for the State has frankly admitted that no identification parade has been held in the case; however, he has fully supported the arguments advanced by the learned counsel for the complainant. I have heard the arguments of the learned counsel' for the applicant, learned counsel for the complainant and learned A.P.-G. for the State and have gone through the entire material available before me with their assistance so also the case law cited at the bar. It is settled law that at the bail stage deeper appreciation of the evidence cannot be gone into but only it is to be seen as to whether the present applicant/accused is prima facie connected with commission of the alleged offence or not. In the present case it is an admitted position that the name of the applicant does not appear in the F.I.R. It is also factually correct that the description of any of the accused persons is not available in the F.I.R. It is also an admitted position that no identification parade as required under the law was conducted by the police and there is unexplained delay in lodging of F.I.R. Since there is delay in lodging of the F.I.R. and it appears that prosecution has tried to improve the case after the arrest of the present applicant through further statement recorded on 17-4-2010, the case of the prosecution has become doubtful which requires further enquiry into the matter. Accordingly I allow this application and admit the applicant to bail. He shall be released on bail subject to his furnishing solvent surety in the sum of Rs.200,000 (Rs.two lac) only and P.R. bond in the like amount to the satisfaction of the learned trial Court. Application stands disposed of. H.B.T/B-13/K Bail granted.