2012 PLP 1059 (MLD)

MUHAMMAD TASNIM, J.

Applicant is booked in Crime No.12 of 2011, under section 392/34 P.P.C., Police Station Shah Latif Town, Karachi. Applicant, in the first place, applied for bail before the learned IInd-Additional Sessions Judge, Malir Karachi, who vide his order dated 17-2-2011 had dismissed the bail application filed by the applicant. Against the aforesaid order present bail application has been filed.

2. The facts of prosecution, as set out in the F.I.R., are that on 5-1-2011 while complainant along with his brother was sitting at his shop at about 2-30 p.m. three persons entered into the shop. One person was having pistol in his hand. The person holding pistol directed the complainant and his brother to remain silent while his other two accomplices searched the shop and on gun point they took the cash amount of Rs.40,000 which was lying in the show case of the shop, snatched one mobile phone. It is further claimed that complainant with the help of his brother Azizullah caught hold the person having pistol in his hand and raised hue and cries, on the voice of commotion the nearby police patrolling party of Shah Latif Town P.S. came on the spot and with the help of police arrested the applicant. It is further stated that a pistol bearing No.A21101 along with three live bullets was recovered and taken into custody by A.S.-I. Aslam Dad Niazi, mashirnama was prepared at the spot bearing the signature of complainant and his brother. In the circumstances present F.I.R was lodged.

3. Learned counsel for the applicant in support of this bail application has submitted that name of the present applicant is not Mukhtiar son of Muhammad Ayal but his name is Deedar Ali son of Badlo, the police with mala fide intention just to book the applicant in this crime has shown the name of the applicant as Mukhtiar son of Muhammad Ayal. He further says that the alleged arrest and recovery was affected in a thickly populated area but no private independent witness was associated. He says that neither the applicant was arrested at the spot, nor any recovery was effected from him. He says that applicant was arrested from his house and the recovered pistol is licensed one. Learned counsel says that minimum punishment for the offence charged against the applicant is three years and lesser punishment can be taken into consideration. Learned counsel says that case of the applicant is a fit case in which further enquiry is called for and the applicant be enlarged on bail.

4. On the other hand learned A.P.-G. has opposed this bail application and has submitted that the applicant was arrested at the spot along with pistol and mashirnama was prepared at the spot duly signed by the complainant and his brother. He says that the applicant is fully connected with the commission of the offence therefore he is not entitled for bail.

5. I have heard the learned counsel for the parties and perused the record.

6. A tentative assessment of the record shows that there are four prosecution witnesses namely complainant Umar Zaman, his brother Azizullah, Aslam Dad Niazi and one private witness namely Khanzada. Perusal of 161, Cr.P.C. statement of P.W. Khanzada shows that he claimed to have arrested the present applicant along with complainant and his brother Azizullah. The statement of P.W. Khanzada do not support the contents of the F.I.R. It is case of the prosecution that applicant was arrested at the spot and recovery of pistol was effected from him, but no private independent witness was cited as mashir for the alleged arrest and recovery though P.W. Khanzada as per his statement was very much available there, but he was not associated as mashir. Since no private witness was associated at the time of recovery and arrest the case of the prosecution becomes doubtful and false implication of the applicant in the present crime cannot be ruled out. The diary sheet of the trial Court has been placed on record by the learned counsel for the applicant which shows that charge was framed in the matter on 7-4-2011 but ever since than not a single witness has been examined by the prosecution though due to their absence summons are being issued for appearance of P.Ws. by the learned trial Court.

7. In view of above, I am of the view that this case requires further enquiry in terms of subsection (2) of section 497, Cr.P.C. Accordingly, present applicant is admitted to bail on his furnishing surety in the sum of Rs.1,00,000 (Rupees One Lac) and P.R bond in the life amount to the satisfaction of learned trial Court. M.W.A./D-18/K Bail granted.