2000 PLP 224 (YLR)

Applicant Amjad Ali is being tried in a case arising out of F.I.R. No. 7/98 under section 392/34, P.P.C. of P.S. Defence (South), Karachi. The case as disclosed by complainant Nazar Hussain in brief is that on 7‑1‑1998 he and Imran Sarwar were working in their jewellery shop when three young persons came on Motorcycle. They parked their Motorcycle outside the shop and one of them kept waiting whereas two accused armed with pistols entered the shop and robbed artificial golden set of ornaments and Rs. 3,000 cash. They disconnected telephone wires and left the spot on same Motorcycle. Complainant thereafter. directed it Imran Sarwar and Aijaz Chaudhry to chase the culprits on Motorcycle and he himself proceeded to P.S. and lodged the F.I.R. in above terms. Since the culprits were being chased by aforesaid P.Ws. they on their way informed police personnel s who tried to capture them. The accused started firing and took up encounter with police and as a result of which one of the accused namely Ali Agha was killed at the hands of police. Accused Dildar Ali was caught at the spot by police and third accused managed to escape. It is contended by the learned counsel for applicant that the name of present applicant does not transpire in F.I.R. Main accused Dildar Ali who was caught at the spot by police and robbed articles were recovered from him, has been granted bail by learned trial Court on 30‑3‑1998. It is asserted that nothing incriminating has been recovered from present accused and the name of present accused was taken by captured accused, on the basis of which police made his arrest. He was arrested on 11‑1‑1998 and later on he was put to Identification Parade through P. Ws Nazar Hussain and Ghulam Sarwar on 15‑1‑1998, after four days of his arrest. It is argued that complainant Nazar Hussain is examined and has deposed in the Court, the copy of which is produced alongwith bail application. He has stated as under:‑‑‑ "Accused Dildar Ali present in Court is the same while I cannot identify co‑accused Amjad Ali as sufficient time has been passed." Mr. Arshad Lodhi learned A.A.‑G. in the above circumstances has not been in position to controvert the aforesaid situation and has very fairly conceded to bail plea of accused. It appears that bail of applicant is mainly refused on the ground that accused has not given address and if he is released on bail it is possible that he may abscond. Accused in this case was arrested on 11‑1‑1998 and since then he is in continuous custody but the trial is not concluded. Main accused Dildar Ali who was caught at the spot is released on bail by trial Court about 17 months back. According to prosecution the robbed property was also secured from him by police yet he was released on bail by trial Court after considering merits of the case. Bail plea of present accused is not considered judicially though his case is more bright than that of accused Dildar Ali. Against present applicant, the only best piece of evidence could be Identification Parade by complainant Nazar Hussain and P.W. Sarwar but complainant is examined and has not identified him in Court as stated above. Name of accused does not appear in F.I.R. and he was arrested by police on the basis of statement of co‑accused Dildar Ali. In view of the circumstances that co -accused Dildar Ali is released on bail in identical situation and bail plea of present accused is being denied, which amounts to discrimination and he too is to be treated equally. I am therefore, of the opinion that case of accused requires further enquiry and he is entitled for bail on the principle of consistency. Under the foregoing reasons, the accused is granted bail subject to his furnishing two sureties in the sum of Rs. 1,00,000 (one lac) each and P.R. bond in the like amount to the satisfaction of the Nazir of this Court. The above observations are tentative in nature. Q.M.H./M.A.K./A‑347/K Bail granted.