P L D 2003 Karachi 243 (PLP)

2. F.I.R. of this case was registered under sections 394/34, P.P.C., on 2‑6‑2002 at 03‑25 hours at Police Station Mehmoodabad Karachi (South). Complainant Ashfaq Ahmed has disclosed in his F.I.R., that on 2‑6‑2002 at about 01‑30 hours he was present in his milk shop when two culprits out of them one was carrying pistol in his hand entered in his shop. They demanded money from the complainant by issuing threats of death. The culprit having pistol in his hand caused blow on the head of the complainant with the butt of the pistol. Due to commotion and cries raised by the complainant, the culprit carrying pistol in his hand managed to run away whereas the other culprit Who was empty‑handed was apprehended by the complainant. The said culprit disclosed his name as Muhammad Ismail. Many persons had gathered due to commotion and taking benefit of the rush of the people, the other culprit Muhammad Ismail also succeeded in running away. As per F.I.R., the incident was witnessed by Ms. Asia, who is sister of the complainant, Muhammad Ramzan Butt, Muhammad Ejaz Butt and others. The complainant thereafter went to Police Station and lodged his report. After usual investigation, police submitted challan against Muhammad Ismail who was arrested on 3‑6‑2002 and his co‑accused Abdul Qayoom who was arrested on 7‑6‑2002.

3. Mr.M. Shafi Muhammadi learned counsel for the applicant has argued that the applicant who is resident of same Mohalla is innocent and has been falsely implicated due to enmity. Previously he had very good relation with the complainant but suddenly due to some differences, now the applicant and complainant are on inimical terms. Learned counsel has further argued that F.I.R. was lodged after inordinate delay of two hours which has not been explained and suggests that time was taken to concoct a false story against the applicant due to enmity. Learned counsel has further argued that there is no private or independent witness of the arrest of applicant who is shown to have been arrested on 3‑6‑2002 at 14‑00 hours in clear day time. Nothing, was recovered from the applicant and from the perusal of F.I.R., itself, offence under sections 394/398/34 P.P.C., does not appear to have been made out and as such it is a case of further inquiry. Learned counsel has also argued that offence may fall under section 17(2), Offences Against Property (Enforcement of Hudood) Ordinance, 1979 or in alternate under section

392. P.P.C., for which punishment does not fall within the prohibitory clause of section 497, Cr.P.C. and as such the applicant is entitled for bail.

4. The learned counsel for the applicant in support of his plea for bail has referred to the cases of (1) Mehmood Ahmed v. The State (1999 SCMR 127), (2) Nadeem Burney v. The State (1997 MLD 1259). (3) Abdul Malik v. The State (NLR 1990 .S7 431) and (4) Hamayun v. The State (1998 PCr. L1 150).

5. Mr. Fazlur Rehman Awan learned State Counsel has argued that the incident took place during night time at 01‑30 hours and F.I.R. was lodged within two hours of the incident. Police Station is at a distance of one and half kilometres from the place of incident and it being night time, as well as from the facts as narrated in the F.I.R., there is absolutely no delay in lodging of the F.I.R. which has been filed within a reasonable time which could not be considered to be fatal to the case of prosecution. Learned counsel has further argued that names of eye‑witnesses Ms.Asia, Muhammad Ramzan Butt and Muhammad Ejaz find, place in the F.I.R and they have fully implicated the applicant in their statements under section 161, Cr.P.C. recorded, on the same day. So also in their statements recorded under section 164, Cr.P.C., on 11‑6‑2002 before the VII Judicial Magistrate (South), Karachi P.Ws. Ms.Asia and Muhammad Ejaz Butt have implicated the applicant and fully supported the contents of the F.I.R. Learned State Counsel has further pointed out that complainant was referred to Medico Legal Officer, J.P.M.C. on the same day who examined the complainant at 7‑30 a.m. and found a diffused swelling having been caused by some hurt and blunt substance over the parietal region of the skull of complainant Ashfaq Ahmed. Learned State Counsel has, therefore, argued there is sufficient evidence to connect the applicant with the commission of offence.

6. I have heard the learned counsel for the applicant, the learned State Counsel and perused the police papers. I have also taken into consideration the case‑law cited by Mr.Shafi Muhammadi in support of his plea for bail. The facts of all the cases cited by Mr.Shafi Muhammadi are distinguishable. In the case of Mehmood Ahmed (supra) which was an appeal in a murder case two hours unexplained delay coupled with other relevant facts including improvements and contradictions made by the eye‑witnesses in their statements was found to have rendered the testimony of the eye‑witnesses to be doubtful and unreliable. Police Station to that case was only two furlongs away from the place of incident whereas in the case in hand, the Police Station is at a distance of about one and half kilometres and it is a mid‑night time incident. Under theses circumstances delay of about two hours i.e. one hour and fifty‑five minutes in lodging of the F.I.R. does not appear to be unreasonable or inordinate. Case of Nadeem Burney (supra) is also distinguishable, in that case of encounter with police no particular role had been assigned to the accused during the occurrence and there were general type of allegations made in the F.I.R. In the present case specific role has been assigned that applicant alongwith co‑accused who was duly armed entered in the milk‑shop of the complainant, demanded money at the point of pistol by putting the complainant ii. fear of death and co‑accused actually F caused blow on the head of the complainant with the butt of pistol. The name of the applicant/accused is shown to have been disclosed by him, which finds place in the FIR, hence the identity of the accused being one of the robbers prima facie stands established. In the case of Hamayun (supra) F.I.R., was registered under section 397, P.P.C. read with section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and while taking into consideration two different type of punishments and the two different sections having been applied in the'F.I.R.. bail was granted considering the punishment for HARABA where no property is taken away being lesser than the punishment under section 397, P.P.C. The said case is again distinguishable as the case in hand was initially registered under section 394/34, P.P.C., but the challan appears to have been submitted under sections 398/394/34, P.P.C. So far the case of Abdul Malik (supra) is concerned, the rule laid down on the contrary goes against the applicant. If a hurt is caused during the commission of robbery, may it be Shuja‑e‑Khalifa, the offence shall not fall under section

392. P.P.C., but under section

394. P.P.C., which is reproduced as below:‑‑ S.394. Voluntarily causing hurt in committing robbery.‑‑If any person in committing or in a attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which shall not be less than four years or more than ten years, and shall also be liable to tine. The relevant observation made in the cited case also supports the view expressed by me. It shall be beneficial to reproduce the same for ready reference:‑‑ The learned Trial Judge has, however, erred in observing that offence of robbery found to have been established is punishable under section 392, P.P.C., as in this case hurt was caused while committing robbery and as such the offence made out fell under section 394, P.P.C.

7. In view of the facts and circumstances of the case in hand, the case?law as discussed above as a tentative assessment of the entire material on record. I am of the view that there are no reasonable grounds to believe that the applicant has not committed the alleged offence which falls within the C prohibitory clause of section 497, Cr.P.C., hence it is not a tit case for grant of bail at this stage. This application is, therefore, dismissed. However, the applicant may repeat his application before the learned trial Court after recording of some evidence particularly that of the complainant and the eye?witnesses. N.H.Q./M‑445/K??????? Bail refused.