1999 PLP 550 (MLD)

Applicants/accused applied for bail before the trial Court but the same was refused by impugned order dated 26-3-1998. Mr. Taza Gul Khatak learned counsel for the applicant/accused has contended that F.I.R. is delayed by four days; that the name of applicants/accused does not transpire in the F.I.R. nor description with regard to their eminent features is given therein; that the applicants/accused were arrested on 20-1-1998 at about 4 p.m. opposite Islamia College M.A. Jinnah Road Karachi while sitting in the car and the car was secured as suspected stolen property and they had pointed out place of incident on the same day at 5.45 p.m; that no identification parade was held. It is, therefore, urged that no offence under sections 382, and 34, P.P.C. is made out; that the mashirs are policemen therefore, recovery cannot be believed, that at the best offence falls under section 411, P.P.C. which is not punishable with death, imprisonment for life or ten years, thus, it goes out of the embargo contained under section 497 (1), Cr.P.C.; that joint Mashirnama of recovery is prepared in the case which is not warranted by law and that the case is out come of enmity, that the case necessitates further enquiry as contemplated under section 497(2), Cr.P.C. and applicants/accused are entitled to bail.' He has placed reliance on 1994 PCr.U 471 and 1993 PCr. LJ 1017. Mr. Ashique Hussain Mehar, learned counsel for the State has conceded to the grant of bail. I have carefully considered the arguments of learned counsel for the applicants/accused and learned counsel for the State. I have also perused the police record with the assistance of learned counsel of the parties as well as the material on record and impugned order. The applicant/accused were arrested at about 4.p.m. in front of Islamia College M.A. Jinnah Road, Karachi while they were sitting in the snatched car. The car was secured as suspected stolen property under section 54, Cr.P.C. and applicants/accused were arrested under mashirnama. The contention that no private persons were made mashirs of recovery is devoid of force as during odd hours of night it is practically impossible to procure the attendence of private persons to act as mashirs, therefore, looking to the peculiar facts and circumstances of this case, prima facie, no violation of section 103, Cr.P.C. is made out at this stage. The evidence of a police man also cannot be ignored at this stage as a police man is as good a witness as any other person untill and unless evidence is brought 'on record to disbelieve him. So far delay in lodging the F.I.R. is concerned in my view the same has been sufficiently explained in the F.I.R., as immediately after the occurrence the complainant informed the police about the robbery of car etc. On telephone No.134 and he remained in search of Car. In Karachi now a days vehicle snatching has become order of the day, and such an act amounts to terrorism. In this context I am fortified by the unreported decision of this Court delivered by my learned brother Dr. Ghous Muhammad, J., in a case of Muhammad Shafique v. The State in Cr.B.A. No.1451 of 1997. Moreover, as per prosecution case after their arrest the applicants/accused voluntarily led the police and pointed out the place of incident wherefrom they had taken away P.W. Faizan alongwith Car Prima facie, it is a strong piece of circumstantial evidence against them, therefore, the contention that no offence under section 382/34, P.P.C. is made out as misconceived. The plea that offence squarely falls under section 411, P.P.C. is also not tenable, because it is not case of knowingly retaining the stolen property simplictor but in the case in hand snatched car was secured from the possession of both the applicants/accused during odd hours of night while they were sitting there in. Hence prima facie, offence will fall, if at all, under section 412, P. P.C. which is punishable with imprisonment of life or ten years and fine. So far preparing joint mashirnama by the police is concerned it does not suffer from any legal infirmity as both the applicants/accused were not arrested from separate or distinct places at different timings but they were arrested at one and same time sitting in the snatched vehicle, therefore, this contention has also no force. The argument that name of applicants/accused does not transpire in the F.I.R. is also without any substance because as per prosecution case both the C applicants/accused were not previously known to complainant or P.W. Faizan. Not giving the description of eminent features in F.I.R. or holding no identification parade, in my view tantamounts to deeper appreciation or evaluation of evidence which is not permissible under law at the stage of bail. The law on this aspect of the matter is well-settled, as for the grant or refusal of bail only tentative assessment is to be made. In respect of enmity no documentary or any other material has been placed on record or pointed out, from which it could be deduced that case is out come of enmity. The bare words of applicant/accused that case is outcome of enmity is not sufficient. The case law cited by the learned counsel for the applicant accused is of no avail to him and it is distinguishable both on the facts as well as law and it is not applicable to the facts of the present case. In case of Rafique Alia Pheeki and others v. The State reported in 1993 PCr.LJ 1017, two accused jointly led the police party and from an uninhabited quarter of 7 Marlas Scheme in area of Chak No.3812-R produced stolen motor-bike alongwith registration Book were secured, whereas in the present case applicant/accused were found sitting in the snatched vehicle. In case of Muhammad Akram v. The State reported in 1994 PCr.LJ 471 there was no evidence or link to the effect that the accused was one of the person who snatched the car but in the case in hand both applicants/accused led the police and pointed out the place wherefrom car was taken away by them alongwith P.W. Faizan. The place so shown was the same which was mentioned by the complainant in F.I.R. and in the mashirnama of the scene of offence. For all the reasons stated hereinabove I do not agree with the learned counsel for the applicants/accused as well as with learned State counsel and I see no merit in the bail application which is accordingly dismissed. The observations made hereinabove are of tentative nature and the trial Court will not be influenced thereby in any way at the time of final decision of the case and will be free to conclude and arrive at its own findings after evidence is recorded in the case. H.B.T./S-156/K Bail application dismissed.