2015 PLP 1661 (MLD)

NAIMATULLAH PHULPOTO, J.

Applicant/accused Akhtar Ali Gowada son of Syed Jan seeks bail in Crime No.19/2014 registered at P.S. Site "A", Karachi under sections 392/34, P.P.C. Brief facts of the prosecution case as disclosed in the FIR are that complainant Sohail Rana deals with business of beverages. He had a godown at Plot No.D-16, Site, Karachi. PW Muhammad Asim was deployed by him as watchman. On 7-1-2014 at 05:30 a.m. Muhammad Asim informed the complainant regarding dacoity committed in the godown. After receipt of such information complainant proceeded to the godown. On inquiry, watchman narrated facts to complainant that on said night at about 03:00 a.m. four accused persons, wearing shalwar and qameez, belonging to the Pathan community, entered in the godown, tied the watchman with ropes, confined in the room and took away cash of Rs.545,670, one CD, TV, Computer and licensed pistol. The photographs of the accused were saved in CCTV camera. FIR of the incident was lodged under sections 392/34, P.P.C. During investigation applicant/accused Akhtar Ali Gowada was arrested on 19-2-2014. After usual investigation challan was submitted against accused under sections 395/34, P.P.C. Bail application was moved on behalf of the applicant/accused before the trial Court, the same was rejected vide order dated 29-4-2014, thereafter, the applicant has approached this court. Learned advocate for the applicant/accused mainly contended that there was delay in lodging of the FIR for which no plausible explanation is furnished. The name of applicant/accused and his description have not been mentioned in the FIR. It is further submitted that complainant has mentioned in the FIR that there were four accused persons but the police has submitted challan under sections 395/34, P.P.C. with ulterior motive. It is submitted that ingredients of section 395, P.P.C. are not attracted in this case. Lastly, he submitted that after arrest nothing has been recovered from the accused. Regarding CCTV camera it is argued that such piece of evidence is yet to be established by the prosecution at trial. In support of his contentions learned advocate for the applicant/accused relied upon the following cases:-- (1) 1998 PCr.LJ 1990 (Irshad Ahmad Shahid v. The State) (2) PLD 2008 Lahore 470 (Walayat v. The State) (3) 1986 PCr.LJ 714 (Karachi) Mahmood v. The State. (4) 2004 YLR 1105 (Karachi) Adeel-ur-Rehman v. The State Mr. Muhammad Iqbal Awan, learned A.P.G. appearing on behalf of the State, argued that the present applicant/accused has been identified by PW/Watchman Muhammad Asif at police station. He has further submitted that applicant/accused has disclosed the names of the other accused during interrogation. Police has collected CCTV photographs of the accused during investigation and alleged offence falls within the prohibitory clause of Section 497, Cr.P.C. He has opposed the bail application. I am inclined to grant bail to the applicant/accused Akhtar Ali Gowada for the reasons that incident had occurred on the night of 7-1-2014 at 03:00 a.m. but it was reported at police station Site "A", Karachi on 18-1-2014 at 22:00 p.m. No plausible explanation has been furnished for such delay in lodging of FIR. Complainant Sohail Rana in the FIR has clearly stated that 4 accused persons entered in the godown and committed the alleged offence. Police lodged FIR under sections 392/34, P.P.C. but the challan has been submitted under sections 395/34, P.P.C. Dacoity has been defined in section 391, P.P.C. as under:-- "

391. Dacoity. When five or more persons conjointly commit or attempt to commit a robbery, or where whole number of persons conjointly committing or attempting to commit a robbery, and person present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding is said to commit "dacoity" Yet prosecution has to establish its case regarding application of section 395, P.P.C. at trial. Nothing belonging to complainant has been recovered from the possession of the present accused during investigation. Evidence procured through modern device like CCTV has been made admissible under Article 164 of the Qanun-e-Shahadat Order, 1984 but at bail stage tentative assessment of entire evidence is to be made by the Court. CCTV evidence certainly will be taken into consideration by the trial Court in accordance with law. The name of the applicant/accused and his description have not been mentioned in the FIR as well as in 161, Cr.P.C. statement of prosecution witness. Reasonable grounds, thus, apparently existed to believe that applicant/accused is not guilty of the offence with which he is charged. In the above stated circumstances, bail cannot be refused to applicant/accused on the ground of seriousness of the offence. After arrest of the present applicant/ accused no identification parade was held through eye-witnesses. Prima facie, a case against the applicant/accused requires further inquiry as contemplated under section 497(2), Cr.P.C. Therefore concession of bail is extended to the applicant/accused Akhtar Ali Gowada son of Syed Jan subject to his furnishing solvent surety in the sum of Rs.100,000 (One Hundred Thousand Rupees), and P.R. bond in the like amount to the satisfaction of trial Court. Needless, to mention here that the observations made hereinabove are tentative in nature and would not influence trial Court while deciding the case of the applicant/accused on merits. MH/A-118/Sindh Bail allowed.