2014 PLP 1593 (YLR)

HASSAN FEROZ, J.

By this order I intend to dispose of Criminal Bail Application No.1140 of 2013 of applicant/ accused Qurban Khan, moved under section 497, Cr.P.C. in F.I.R. No.157/ 2013 under section 395 P.P.C. lodged at Police Station Steel Town, Karachi.

2. Brief facts of the prosecution case are that on 15-6-2013 complainant Shariq Din lodged F.I.R. at Police Station Steel Town stating that he has been driving Trailer bearing No. LSB-9865 of Abbas Goods for last three years and on the date of incident he proceeded to Punjab after loading 440 bags of "Tea" weighing 30 tons along with his conductor Naseer Ahmed from godown of Gul Bai. On 14-6-2013 meanwhile his vehicle became out of order and he got repaired it on the way and when they reached at Slope 9 K.M meanwhile, ten wheeler truck overtook them, out of which 5/6 persons armed got down subsequently. Conductor Naseer Ahmed saw them and ran away from the door of Trailer towards the woods. The complainant further stated that armed persons caught him hold and folded his eyes with cloth and pushed him to get down from the vehicle into jungle and when the complainant removed cloth from his eyes, went to nearby petrol pump and informed the entire incident to owners on phone and when he reached at Police Station to report the matter, he found his trailer with loaded container and two accused persons who had snatched his trailer on gun-point along with their 3/4 unknown accomplices.

3. Learned counsel for the applicant has strongly contended that series of offence have been created out of one alleged offence whereby the police has segregated the cases under sections 353 and 324, P.P.C. and another case under section 395 and a case under section 23-A by lodging different F.I.Rs. It has further been contended by the learned counsel that in the offence under section 353, P.P.C. applicant/accused has been granted bail by Ist. Additional Sessions Judge, Malir wherein exchange of fire has been shown but no injury has been caused therefore, looking to the further inquiry accused persons are already on bail whereas in the instant case it is admitted position that the applicant/accused was taken into custody and while he was in confinement in police lockup the present case under section 395, P.P.C. has been registered showing the transaction of commission of offence as a continuity. Learned counsel has contended that holding of identification test could not be dispensed with and cited resembling case of Hon'ble Supreme Court reported as 1997 SCMR 971, wherein a truck having been robbed in presence of complainant driver and its cleaner, identification is held to be absolutely necessary and investigating police has not complied with provisions of section 103, Cr.P.C. while effecting the recovery of the robbed truck. Learned counsel for applicant/accused has also relied on 2009 SLJ 1068 Karachi, wherein identification test is stressed. Learned counsel has also relied on 2007 YLR 424, wherein identification of accused by the complainant has been held of no legal consequence.

4. Learned A.P.-G. assisted by I.O. has failed to substantiate the piecemeal lodging of F.I.R. for one incident.

5. I have in my view the arguments advanced by both the sides as well as F.I.R. and police papers are also in my perusal. I have also in view the bail already granted to the applicant/ accused by the trial Court in the main offence however, the bail application in this offence under section 395, Cr.P.C. has been declined by the trial Court, I am conscious that this is a matter pertaining to dacoity wherein basic ingredients of legal requirements of identification has not been fulfilled in view of the citations relied by the learned counsel for the applicant/accused, however no material as to causing hurt or wrongfully restrained for fear of instant death comes out at this prima facie stage thus mens rea and actus reus require proof during the course of trial so also proof of recovery of truck however without the support of identification test and the applicant/accused being found in confinement on being seen by complainant in police lockup stretches benefit of doubt and falls within the purview of further inquiry as the ingre-dients to attract offence under section 395, P.P.C. require proof which is to be ascertained through conscious steps and not accidently as common unitity of design to commit offence and specific role is a matter of evidence. I therefore, looking to the further inquiry under section 497(2) Cr.P.C. grant bail to the applicant in the sum of Rs.100,000 (Rupees One Lac) and P.R. bond in the like amount to the satisfaction of the trial Court. The observations made hereinabove are of tentative nature and will not affect the course of trial. MWA/Q-1/Sindh Bail granted.