2022 P Cr (PLP)

ABDUL MAALIK GADDI, J.

Having remained unsuccessful in obtaining his release on bail from trial Court in Crime No.200/2019 registered under section 395, P.P.C. at Police Station Gadap City, Karachi, now applicant Abdul Wahab is seeking his release on bail in the said crime through instant bail application.

2. The facts of the prosecution case as stated in the FIR are that complainant was working in TCS Company and on the night of incident he had loaded 525 Courier Cartons of various company in Truck bearing No.JV-3822 for delivery and at about 0100 hours when reached near Chakwal Patrol Pump where one white colour Corolla Car intercepted him and five persons de-boarded from it and on gun point, they got him down from the said Truck and started beating him. It is also alleged that they took away Container/Truck and Car also left, while three persons took him to Jungle and at about 04:30 a.m. set him free. It is also alleged that he came on road where found police mobile and he narrated such fact to them and also contacted with Company staff, whereby he informed them that the Truck was standing at Superhighway near Lucky Cement the truck was found empty. It is further stated that at about 0530 hours he along with police party had reached at pointed place where they found a shop and 7/8 persons were there who on seeing police party to succeed to flee away, while present applicant was arrested and recovered from him robbed cartons, however after counting 20 cartons were found missing and on inquiry accused disclosed the name of other culprits as Zahid, Haq Nawaz, Shahid Machi, Shahzaib Machi and Allah Bux. Hence this FIR.

3. Mr. G.M. Bhutto learned advocate for the applicant has argued that case against applicant/accused is false and has been registered with mala fide intention; that nothing was recovered from his possession; that no independent witness of the alleged incident has been cited by the police to witness the event, but the learned trial Court has ignored this aspect of the case; that this is the case of no evidence/eye-witness and in absence of any direct evidence the applicant's case is fit for further inquiry in to the guilt of the accused under section 497(2), C.P.C; that complainant has filed his affidavit exonerating the applicant/accused in the commission of crime; under these circumstances, counsel for the applicant has prayed for bail by relying the following case laws:- 1) Arsalan Masih v. The State 2019 SCMR page 1152 2) Siraj and 2 others v. The State 2013 PCr.LJ page 398 3) Mukhtiar Ahmed v. The State 1999 PCr.LJ page 1107 4) Abdul Qayyum v. The State 2018 PCr.LJ page 45 (Note) 5) Aziz Khan v. The State 2004 PCr.LJ page 490

4. Mr. Abdullah Rajput learned DPG has opposed the grant of bail on the ground that applicant/accused is nominated in the FIR with specific allegation and looted 20 cartons of TCS were recovered from the shop of applicant/accused in presence of mashirs He no inimical terms with the applicant/accused, prima facie shows the involvement of the applicant/accused in a case of serious and heinous in nature.

5. Parties advocates have been heard and record perused.

6. It appears from the record that incident took place on 13.09.2019, whereas, the FIR was lodged on the same day without any delay. First Information Report has been lodged by complainant Muhammad Akbar, who nominated the present applicant/accused in the commission of the offence. Applicant was arrested on 13.09.2019, huge case property i.e. 20 cartons of TCS were recovered from the shop of applicant/accused in presence of mashirs, who have no inimical terms with applicant/accused. Applicant/accused has not denied the ownership of the shop from where the robbed articles were recovered. Case is at initial stage. Serious allegations have been levelled against the applicant/accused. As per police papers the applicant/accused is allegedly involved in a case of serious and heinous in nature. Sufficient evidence on record to connect the applicant/accused in the commission of offence. At the bail stage, deeper appreciation of evidence cannot be gone into which is the function of the trial Court.

7. It is argued by learned counsel for the applicant that complainant Muhammad Akbar has also filed his affidavit of no objection for grant bail in favour of the applicant/accused, therefore, according to him, the applicant/accused is entitled for bail. I am not impressed with this argument of learned counsel for applicant/accused for the reasons that on the one hand the complainant lodged FIR against applicant/accused with serious allegation and on the other hand, he has filed affidavit on no objection, which appears to mockery with the Court. It is noted that in the said affidavit, complainant has not exonerated the applicant/accused from the commission of the offence. Even otherwise, merely filing affidavit of no objection, the applicant has not become automatically entitled for grant of bail. In my tentative opinion, affidavit submitted by complainant is of no consequence during bail stage and could not be given status of evidence, as the affidavit submitted by complainant is not statement either under section 161 or 164, Cr.P.C. In this connection, I am supported with case of Mst. Bashiran Bibi v. Nisar Ahmed and others reported in PLD 1990 SC page 83.

8. In view of the above this bail application merits no consideration and the same is dismissed along with listed applications, if any. The case laws cited by learned counsel for the applicant have been perused and considered by me, but do not find applicable to the facts of the present case. Even otherwise, in Criminal Administration of Justice, each case has to be decided on its own facts and circumstances and Courts are required to exercise jurisdiction independently, as held by the Hon'ble Supreme Court of Pakistan in the case of The State v. Haji Kabeer Khan reported as PLD 2005 Supreme Court 364 and Muhammad Faiz alias Bhoora v. The State and another reported as 2015 SCMR 655.

9. This bail application was dismissed on 05.12.2019 after hearing the parties, by short order announced in open Court and these are the detailed reasons thereof. ADN/A-32/Sindh Application dismissed.