1999 PLP 1991 (MLD)

The facts leading to the present application for bail are that applicants/accused Muhammad Shafique and Muhammad Sajjad are facing trial under section 20 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 in Sessions Case No.310 of 1997 before learned Additional Sessions Judge, Malir, Karachi, arising out of the F.I.R. No. 132 of 1997 of Police Station Airport, District, Malir Karachi. The brief facts of the prosecution case as disclosed in the F.I.R., lodged by one Syed Azhar Mehmood, are reproduced. below:- "I am residing on the aforesaid address and I am doing plastic business, On 21-5-1997 after finishing my work while I was going to my house in my Car bearing No.AAD-743 and when at about 7-15 p.m. I reached in front of the office of Meterological Department one white colour car Rowed me and the same was parked in front of my car. Two youngsters, aged about 25/26 years came towards me. The person wearing trouser and shirt having a pistol in his hand threatened me and after pulling me down from my car, both sat in my car and went away. I complain that two persons whose name and addresses are not known to me after snatching my car, took it away. I remained in search of my car and now I have come for report. Action be taken." Applicants/accused applied for bail before the trial Court but the same was refused by impugned order dated 28-1-1998. Mr. Mehmud Hussain, learned counsel for the applicants/accused has contended that names of applicants/accused does not transpire in the F.I.R. ; that the F.I.R. is delayed by eight days ; that no identification parade was held ; that applicants/accused were arrested in another Crime bearing No. 168 of 1997 under section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with sections 324, 353 and 186, P.P.C. and they were also booked in this case; that complainant in Crime No. 168 of 1997 has exonerated the applicants/accused in his evidence before trial Court, therefore, presumption may be drawn that complainant of present case, when he is examined, will exonerate and give clean slate to the applicants/accused; that the recovery of Rs.40,000; allegedly robbed amount of another case has been foisted upon them by the police: that the applicants/accused are granted bail in another case thus keeping in view the rule of consistency and above contentions applicants/accused are entitled to bail. Mr. Ashtque Hussain Mehar, learned counsel for the State, has opposed the grant of bail and has contended that the act of the applicants/accused amounts to terrorism; that the applicants/accused were arrested after encounter with police sitting in the snatched vehicle i.e. case property of the case in hand; that in all there are five cases pending against the applicants /accused , out of which three cases are of identical nature and two are under Arms Ordinance; that the identification of applicants/accused took place through complainant at police station, therefore, they are not entitled for bail. I have carefully considered the arguments of both the learned counsel. I have also perused the Police record with the assistance of learned counsel for the parties as well as the material on record and impugned order. It is not disputed that no encounter took place and/or accused were not sitting in snatched car of the complainant when they were arrested by police. In Karachi now-a-days crime of vehicle snatching, robbery, dacoity and encounters with Law Enforcing Agencies are rampant. The vehicle snatching is an act of terrorism. In this context I am fortified by the unreported decision of this Court delivered by my learned brother Dr. Ghous Muhammad, J., in Muhammad Shafique v. The State in Criminal Bail Application No. 1451 of 1997. So far the contention that names of applicants/accused does not transpire in F.I.R. is also without any substance, because according to prosecution case both the applicants/accused were not previously known to the complainant. So far as delay in lodging the F.I.R. is concerned, in my view the same has been prima facie explained as it is stated in the F.I.R. that complainant remained in search of his car. It appears that when his efforts did not meet with success he lodged the report with police. Apart from the people generally in given circumstances try to get their property restored without intervention of police. The snatched car was secured from the possession of both the applicants/accused when they were found sitting therein and encounter ensued. Hence prima facie offence will also fall under section 412, P.P.C. which is punishable with imprisonment of life or ten years and fine. The holding or nonholding of identification parade is concerned in my view it may tantamount to deeper appreciation of evidence, which is not permissible at the stage of bail. The contention that since complainant of another crime has exonerated the applicants/accused in his evidence recorded in the Court presumption would be that complainant of this case, who is a different person and when he is examined he will act in the same way and give clean slate to the applicants/accused. This contention is misconceived. There appears no earthly reason for drawing such an inference which is not warranted by any canon of criminal jurisprudence or law of evidence. The foisting of robbed amount of Rs.40,000 by police is also without substance. The amount so recovered is not the property of this case. Moreover, it does not appeal to the common sense that police from their own pocket will foist such a heavy amount on the applicants/accused. In respect of enmity, no documentary or any other material has been placed on record or pointed out, from which it could be inferred that this case is outcome of enmity. The bare contention raised on behalf of applicants/accused that the case is outcome of enmity is not. sufficient. For all the reasons stated herein above, I do not agree with the learned counsel for the applicants/accused and I see no merit in the bail application, I which, is consequently, dismissed. The observations made herein above are of tentative in nature and the trial Court will not be influenced thereby in any way at the time of final decision of the case and it will be free to conclude and arrive at its own findings on merit after evidence is recorded in the case. N.H.Q./M-370/K Bail refused.