1999 PLP 2444 (YLR)

The facts leading to the present application for bail are that applicant/accused Bacha Rawan son of Shahab Wali is facing trial under sections 392, 397 and 34, P.P.C., in Sessions Case No.557 of 1998 before learned III‑Additional Sessions Judge, Karachi (West) which has arisen out of F.I.R. No.249 of 1998 of Police Station Saeedabad, Karachi.

2. The brief facts of the prosecution case, as alleged in the F.I.R. lodged by one Rizwan on 12‑9‑1998, are that he is residing in a house situated at Duba Colony, Saeedabad, Karachi alongwith his parents and is student of 2nd year. On 12‑9‑1998 at about 1‑15 p.m. he was present in his house alongwith his mother, sister and elder brother when some one knocked on the main gate of his house. On this he opened the door and found four young boys, who appeared to be Pathans wearing Shalwar Qamiz and were armed with pistols. They barged into the house. One of them aimed pistol at complainant and directed him and other inmates of the house to go inside the room where they were detained. The culprits demanded the keys of almirah from the inmates of the house, which were handed over to them by the mother of the complainant. Two culprits, who were duly armed, kept guard over the inmates of the house and remaining two culprits went to another room of the house where they took out a licensed revolver of .30 bore, cash amount of Rs.14,000, two V.C.Ps., golden necklace and bangles etc. from almirah. The culprits again went to the complainant party in the room and directed them to hand over the remaining valuables. At that stage one of the culprits opened fired upon the complaisant with the result complainant sustained injury on the thigh and he fell on the ground. Thereafter, all the accused went away taking away the robbed property mentioned hereinabove. The complainant was removed to hospital and subsequently he lodged report.

3. The applicant/accused applied for bail before the trial Court but it was refused by impugned order, dated 19‑12‑1998.

4. I have heard Mr. Muhammad Altaf Khan, learned counsel for the applicant/ accused and Mr. Habibur Rasheed, Advocate on behalf of Advocate‑.General for the State. The latter opposed the grant of bail to the applicant/accused. I have also perused the record of the case.

5. The perusal of record shows that during broad daylight applicant/accused alongwith his companions barged in the house of the complainant and by putting the inmates of the house in fear of death committed robbery. Eye‑witnesses Haji Hanif and Haji Muhammad Ashraf, whose names transpire in the F.I.R. and who removed the complainant/ injured to the hospital, have specifically named the applicant as one of the culprits in their statements under section 161, Cr.P.C., which were recorded on the next day i.e., 13‑9‑1998. On 14‑9‑1998 applicant/accused was arrested in another case under sec tion 13‑D of the Arms Ordinance and on 15‑9‑1998 he was taken into custody in the present case. The impugned order of trial Court shows that statement of P.W. Mst. Farida mother of the complainant, who was also made hostage and delivered the keys of almirah to the accused identified the applicant as one of the culprits in her statement before the trial Court.

6. The contentions of the learned counsel that no identification test was held and name of applicant/accused does not transpire in the F.I.R. and that the statements under section 161, Cr.P.C., of P.Ws. are of no evidentiary value and that they cannot be looked into by the Court for the purpose of bail are misconceived.

7. The identification test is not a requirement of law. It is only one of the methods to test veracity of the evidence of an eye‑witness who has had an occasion to see the accused and claims to identify him. In this context I am fortified by the decision of Honourable Supreme Court in the case of Muhammad Akbar v. The State (1998 SCMR 2538). It is well‑settled that for the purpose of bail at initial stage Court has to see the material available with the prosecution by examining F.I.R., statements of prosecution witnesses recorded under section 161 or 164, Cr.P.C., so also the other material collected by the prosecution. The authorities Muhammad Rafique v. The State (1996 SCJ 490), Amir Bux and another v. The State (1990 PCr.L1 1765), Dilshad v. The State (1995 PCr.LJ 248), Abdul Hashim v. The State (1969 PCr.LJ 491) and Jalal Ahmed Khan v. The State (1997 PCr.LJ 639), cited by the learned counsel for the applicant/ accused are of no help to the applicant/ accused as the facts and circumstances of the present case are distinguishable from the facts and circumstances of the cases referred to hereinabove.

8. Resultantly, the application for bail merits no consideration and it is accordingly dismissed.

9. The observations made hereinabove are of tentative nature and the trial Court will not be influenced thereby in any manner at the time of final decision of the case and it will be free to conclude the case and arrive at its own findings on merits after evidence is recorded in the case. N.H.Q./B‑44/K