2009 PLP 301 (YLR)

MRS. QAISER IQBAL, J.

Applicant Muhammad Anis son of Zakaria has applied for post arrest bail in Crime No.109 of 2007 under sections 395/412, P.P.C. registered at Police Station Steel Town Karachi. Succinctly the case as unfolded by complainant Haroon Rasheed in his report that he was serving as accountant in Saif Cargo Services, on 16 June, 2007 a trawler was loaded from Samsung Godown with washing machines, T.Vs., splits handed over to driver Abid Hussain and cleaner Muhammad Akram. Complainant received information that the goods dispatched for Lahore were snatched by dacoits at link road. Complainant contacted driver Abid Hussain who informed about the dacoity committed by seven youngsters with muffled faces speaking Sindhi on show of force. The culprits drove away with the trawler towards the Super Highway snatched cash also. The application along with co-accused were arrested in the commission of crime. Mr. Mehmood A. Qureshi has contended that the applicant was not named in First Information Report lodged against the accused with muffled faces. After the arrest, mashirnama of the seizure of the case property recovered on 9 July, 2007, applicant along with co-accused Abdul Aziz had jointly pointed out the stolen property which was secured from the Godown of Haji Farooq. In support of the above contention reliance has been placed on the case of Naeem Akhtar and others v. The State (1999 PCr.LJ 769), the dictum expressly laid down is that joint recovery is not admissible in evidence. This view also finds support in the case of Rafique alias Pheeki and 2 others v. The State (1993 PCR.LJ 1017) that joint recovery of motorcycle was not permissible under the law and could not be taken into consideration. It is next urged that at the time of alleged recovery, Investigating Officer has failed to pick up witnesses from the locality as envisaged under section 103, Cr.P.C. non-adherence of this provision of law is fatal as prosecution must associate inhabitants of the area before effecting recovery. To support the above view reliance is placed on the case of Khalid Javed v. The State (2003 SCMR 1419). It is next urged that when reasonable doubt arises with regard to participation of an accused person in the crime or about number or probability of the prosecution case and the evidence proposed to be produced in support of the party the applicant should not be deprived of benefit of doubt at bail stage and in such a situation it should be better to keep him on bail than in jail during the trial. This view finds support from the case of Syed Amanullah Shah v. The State (PLD 1992 SC 241). Learned State counsel has opposed the bail application on the ground that applicant was known to co-accused. Abdul Aziz had remained associated with the sale and purchase of stolen properties, prima facie, there is sufficient evidence to connect him in the commission of the crime. I have considered the arguments advanced at bar. There cannot be two opinions on the basis of memo. of seizure prepared by SIP Madad Ali that recovery was effected on joint pointation from Godown of Haji Farooq Sher Shah Gul Bai which requires a serious consideration. It cannot be held conveniently that articles were recovered from the exclusive knowledge and possession of the applicant. There is no cavil to the effect that the applicant was not named in First Information Report, any statement made by him before the police officer is not admissible under the law. On tentative shifting of the evidence available on record I am of the view that the applicant is entitled to the concession of bail. Investigation is over, case has been challaned. It would be better to keep the accused person on bail than in jail during the trial. Personal liberty of an individual is guarded by the criminal jurisprudence as well as under constitutional jurisdiction. In the present case story of the prosecution does not appear to be probable vis-a-vis applicant, requires further inquiry. In the above circumstance, the applicant is admitted on bail subject to furnishing solvent surety in a sum of Rs.100,000 (Rupees one hundred thousand only) and P.R. bond in the like amount to the satisfaction of the trial Court. A.M.R./M-153/K Bail granted.