2011 PLP 2155 (YLR)

TUFAIL H. EBRAHIM, J.

The applicant being aggrieved and dissatisfied with the order of bail dismissal dated 1-4-2011 of learned I-Additional Sessions Judge, Karachi South and first bail application order dated 17-3-2011 by learned 1st Civil Judge/Judicial Magistrate Karachi South, has preferred this application. Brief facts of F.I.R. No.41 of 2011 registered at Police Station Artillary Maidan under section 379/34, P.P.C. are that on 8-3-2011 complainant Adalat Shah along with others boarded coach going to Raiwand, at about 1300 hours when they reached Cantt. Chowrangi near Post Office, the applicant took out cash amount of Rs.17,000 from the pocket of complainant's shalwar. The complainant caught hold of the applicant, upon which he handed over the major amount to his accomplice who managed to escape. Out of the said amount a sum of Rs.1,900 were recovered from the applicant on the spot. The applicant disclosed his name and also disclosed the name of his accomplice, who had run away with the stolen amount so also NIC of applicant's friend. The applicant along with stolen amount was handed over to police who were available near to the place of incident in the Police Mobile. Police arrested the applicant and kept the amount in their custody. Thereafter complainant in company of police came to Police Station and lodged F.I.R. Per learned counsel the applicant is innocent and has been falsely implicated in this case. Per learned counsel the coach was booked for 24 passengers to proceed to Raiwind to participate in the religious gathering, and the passengers were sitting seat by seat no place at all was left for any passenger. Learned counsel has argued that there were 24 passengers in the coach at the relevant time of occurrence, but no name of any witness is mentioned in the F.I.R. except one Amir Daraz who is friend of the complainant. Per learned counsel the so-called stolen money was not recovered by the police from the possession of the applicant, but was handed to the police by the complainant. Per learned counsel no passenger of the said bus was made as mashir for the alleged arrest and recovery and as a witness to the incident. Per learned counsel the details of currency notes were not mentioned in the F.I.R and F.I.R. was lodged after the arrest of the applicant. Per learned counsel the offence with which the applicant is charged does not fall within the prohibitory clause of section 497,- Cr.P.C. and it is a fit case for further enquiry. Learned counsel in support of his contentions has relied upon the case-laws reported in 2008 PCr.LJ 611, 2008 PCr.LJ 923 and 2008 PCr.LJ 1621. Learned A.P.-G. has strongly opposed the grant of bail to the applicant on the grounds that the applicant was apprehended by the complainant red-handed with the stolen amount and immediately after commission of the offence the applicant and the recovered property were handed over to the police. Per learned A.P.-G. the incident had taken place in the broad-daylight and there is no enmity between the complainant and the applicant, which could show that the applicant has been falsely implicated in the present F.I.R. Per learned A.P.-G. the case of applicant is fully coved within the ambit of section, 59, Cr.P.C. In support of his contentions the learned A.P.-G. has relied upon the case-laws reported in 2002 SCMR 442, PLD 1970 SC 2006, 1999 SCMR 944 and 2009 SCMR

929. I have heard the learned counsel for the appellant as well as learned A.P.G., perused the material placed before me. The name of the applicant has been disclosed in the F.I.R. and specific role has been assigned. The applicant has been caught red handed by the complainant on the spot and part of the stolen amount was recovered from the applicant and as such there was tangible legal evidence against the applicant and in my opinion the same is in consonance with section 59 of Cr.P.C. The applicant was handed over to the Police who were available nearby in their Police mobile who took the applicant to the Police Station where F.I.R. was registered. There is no apparent enmity between the parties or any mala fide on the part of the police prima facie there is sufficient material available on record to connect the applicant with the commissioning of the offence and hence the applicant is not entitled to bail. The offence under section 379, P.P.C. is not bailable although offence does not fall within the prohibitory clause of section 497(1), Cr.P.C., but none can claim bail as a right in non-bailable matters. The mere failure to mention the denominations and the serial numbers of the currency stolen cannot be considered as a factor for granting the concession of bail on the ground of further inquiry within the meaning of section 497(2), Cr.P.C. The case-laws submitted by the learned counsel for the applicant are distinguishable to the present case of the applicant. Consequently this criminal bail application stands dismissed. Needless to mention that the above observations and discussion are only tentative in nature and should not influence the trial Court in arriving at a just and fair decision, based on the evidence to be adduced at trial. I further direct the trial Court to decide this case expeditiously and preferably within a period of two months. N.H.Q./W-7/K Bail refused.