1997 PLP 1875 (MLD)

Syed Saeed Hassan Zaidi for Applicant. Shafi Muhammad Memon, A. A.‑G. The applicant is facing trial in Crime No.484 of 1994 registered at Police Station Gulshan‑e‑Iqbal, Karachi under sections 399 and 402, P.P.C. on the complaint lodged by S.H.O., Gulshan‑e‑Iqbal Police Station. According to the prosecution story on 20‑8‑1994 the complainant alongwith his staff was on patrol duty when at 9‑15 p.m. he received spy information that five dacoits duly armed are present near a bungalow in Rehmatia Colony with the intention to commit dacoity. On receipt of this information the police party reached there and found five persons peeping through the gate of the Bungalow. The police party apprehended four of them while the fifth accused, who was subsequently identified as present applicant, managed to escape away and was arrested during the course of investigation. Bail application moved on behalf of the present applicant was rejected by the Judge, STA‑III, Karachi vide order, dated 14‑9‑1995. Learned counsel for the applicant contends that the applicant was not previously known to the complainant party and no identification test has been held. He further submits that there is no evidence to the effect that the applicant alongwith co‑accused had gathered there to commit dacoity or made preparations for the same. According to the learned counsel nothing has been recovered from the applicant. Learned A. A,‑G. opposes grant of bail and contends that though no identification test has been held in respect of the applicant but he has been identified by the complainant Raza Hussain and other eye‑witness Hasnat Waqar in the Court. He further contends that as arms were recovered from the co‑accused during the odd hours of the night, therefore, it can safely be presumed that they had made preparations and gathered there to commit dacoity. Heard the learned counsel for the applicant and the State. Prime facie there is no evidence that the applicant had gathered at the Wardat to commit dacoity and made preparations to that effect. Of course, arms have been recovered from the co‑accused, for which they have been booked under the relevant law, but nothing has been recovered from the present applicant. Learned counsel for the applicant has relied on cases of Abdul Wahid v. State 1993 PCr. LJ 2254 and Muhammad Akram v. State 1994 PCr. LJ 840 and in both the cases it has been held that "there is no tangible evidence to show that the arms allegedly carried by the petitioner and his co‑accused were with intention to commit dacoity, therefore, the provisions of sections 399 and 402, P.P.C. are not attracted in this case". However, at this stage we cannot scrutinize the evidence minutely but only tentative assessment can be made. It may be observed that the applicant is in jail for more than one year. In view of what has been discussed above case of the applicant needs further enquiry, as such, he be released on bail on his furnishing one surety in the sum of Rs. 1,00,000 and P.R. in the like amount to the satisfaction of the trial Court. These are the reasons for our short order already announced on 25‑10‑1995. The observations made in this order will not affect the proceedings before the trial Judge.? N.H.Q./M‑66/K????????????????????????????????????????????????????????????????????????????????????????????? Bail allowed.