2012 PLP 303 (MLD)

MUHAMMAD ATHAR SAEED J.

This Criminal Bail Application has been filed against the order of the VIIIth Additional Sessions Judge, Karachi East dated 4-5-2011 in Sessions Case No.768 of 2011 relating to F.I.R. No.234 of 2011 register with Police Station Ghulistan-e-Johar for offences under sections 392/34, P.P.C., whereby the bail application of the present applicant was rejected.

2. Brief facts of the case as per F.I.R. which has been filed one month after the date of incident and for which no explanation has been given are that the complainant received information that some of his relatives including the applicant holding pistols with them had taken away cash amounting to Rs.10,000 and gold ornaments of three tolas from his wife on gunpoint. The faces of the culprits were muffled but his wife identified them from their voice.

3. I have heard Mr. Aijaz Farooq the learned counsel for the applicant and Ms. Rahat Ehsan the learned Deputy Prosecutor General Sindh.

4. The learned counsel for the applicant submits that the impugned order is a non-speaking and sketchy order in which without considering that the identification was only on the basis of voice the learned Judge has just on general observations without bringing any thing on record rejected his bail application. He relied on the judgment of the Honourable Supreme Court in the case of AHMED SHER and another v. THE STATE (PLD 1995 Federal Shariat Court 20) whereby the honourable Supreme Court had held that identification on the basis of voice where the witness has not seen the face of the accused because the face was muffled is a weak piece of evidence and cannot be relied upon. He also relied on a judgment in the case of ALI AHMED V. THE STATE (2007 YLR 1144) where I had granted bail as offence did not fall within the prohibitary clause. He submitted that the maximum punishment under section 392 is ten years. He therefore prayed that the applicant may be released on bail.

5. The learned Deputy Prosecutor General Sindh conceded that no explanation was given for the delay in filing the F.I.R. but could not controvert the contentions of the learned counsel for the applicant.

6. I have examined the case in the light of the arguments of the learned counsel and I am inclined to agree with the learned counsel for the applicant that the order is a very sketchy and a non-speaking order and against the facts of the case as the learned Judge has stated that the accused were identified on spot by the complainant whereas in the F.I.R. it is stated the complainant was not present at the scene of the crime and the applicant/accused were identified by his wife by their voice which in view of the judgment of the honourable Supreme Court is a weak evidence. Such an order in my opinion cannot be sustained as the learned Judge has not given any cogent reason for rejection of bail. I am of the considered opinion that the case of the applicant is not only of further enquiry but is also covered by the judgment of the Honourable Supreme Court in the case of TARIQ BASHIR and 5 others V. THE STATE (PLD 1995 SC 34) where the Honourable Supreme Court has held that in respect of offences for which maximum punishment is less than ten years, grant of bail is a right and refusal is an exception. I therefore admit the applicant to bail subject to furnishing solvent surety in the sum of Rs.50,000 (rupees fifty thousand only) and P.R. in the like amount to the satisfaction of the trial Court.

7. The applicant is directed to cooperate with the trial and attend the hearings on each and every date failing which this concession of bail may be withdrawn.

8. Needless to observe, the observations in this order are tentative in nature and the trial Court may not be influenced by the same while deciding the main case of the applicant.

9. A copy of this order be sent to the District and Sessions Judge, Karachi East so that he can see that what sort of orders his Judicial Officers are passing. H.B.T./A-159/K Bail granted.