1994 P Cr (PLP)

Fareed Ahmed Dayo for A.-G. for the State. Applicant Hafiz Zameer Hussain son of Fazal Hussain is detained in F.I.R. Crime No.88/1993 registered at Police Station Aram Bagh for offences under sections 381, 457, 34, P.P.C, read with section 14, Offences Against Property (Enforcement of Hudood) Ordinance, 1979. The applicant had applied for bail before the learned Judicial Magistrate I, South Karachi which was rejected. Thereafter the applicant applied for bail before the Sessions Court but the same was also rejected by learned VIIth Additional Sessions Judge, Karachi South, As such, the applicant has preferred the present bail application. The facts of the case are that complainant Shafiqur Rehman, Manager of U.B.L., New Chali Branch lodged report at Police Station Aram Bagh on 19-5-1993 in which he stated that on the said date at 8-45 a.m. when he reached the bank he saw that the main gate of the bank was closed, so he waited for the Chowkidar as he was under the impression that the Chowkidar might have gone to take tea. In the meanwhile the Bank's staff and other persons had also assembled. As the Chowkidar did not turn up, therefore, the lock was broken and thereafter they entered the bank. When the strong room was opened he saw that one almirah was lying on the ground and there was a big hole in the wall dividing the strong room and the adjoining room. The police was thereafter called and it was then noticed that 11 lockers were broken which were lying empty. The gunman/Chowkidar was also found inside with his hands tied with a rope. He was released by the police and a case was registered by the police who conducted the investigation of the case. At the initial stage the Chowkidar, that is the applicant, was arrested but he was released by the police. Thereafter on 22-6-1993 the applicant was rearrested from near Disco Bakery, Gulshan-e-Iqbal alongwith some articles. Thereafter the co-accused is said to have made a judicial confession before a Magistrate, implicating the applicant. I have heard Mr. Sardar M. Ishaque learned counsel for the applicant and so also Mr. Fareed Ahmed Dayo, learned counsel for A.-G. for State. The latter has opposed this bail application. Admittedly the applicant is the gunman of the bank concerned and he was found inside the bank and was found tied by a rope. Initially he was arrested and released by the police. Thereafter he was rearrested on 22-6-1993 when some ornaments are said to have been recovered from his possession. Admittedly, no regular identification parade in respect of the said ornaments was got held through a Magistrate. Admittedly no receipts of the said ornaments were produced before the police. The prosecution case rests heavily on the judicial confession made by the co-accused before a Magistrate. It may be mentioned that the applicant himself has not made any judicial confession. So far as the confession of the co-accused is concerned, it cannot be used against the other accused. As such, the only piece of evidence against the applicant is that he was arrested on 22-6-1993 when some articles are said to have been recovered from his possession. Even if we presume that the articles were recovered from the possession of the applicant, that by itself will not lead to the conclusion that the main offence was committed by the applicant. No doubt it raises a strong suspicion against the applicant, but that suspicion cannot be termed as evidence as there is no explanation why the articles recovered from the applicant were not got identified in a regular test identification parade of articles before a Magistrate. This being the position, at the most the applicant can be said to be found in possession of some property which is alleged to be stolen for which the applicant will be liable at the most under section 411, P.P.C. In the above circumstances, I am of the view that a ground for bail is made out by the applicant. Accordingly, bail is granted to the applicant on his furnishing one surety in the sum of Rs.1,00,000 and P.R. bond in the like I amount to the satisfaction of the trial Court. 40 By a short order dated 19-12-1993 this bail application was allowed, these are the reasons for the same. N.H.Q./Z-218/K Bail allowed.