ORDER SHEET
THE HIGH COURT OF SINDH AT KARACHI
Cr. Bail ApplicationNo.1468 of 2016
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Date Order with Signature(s) of Judge(s)
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For hearing of Bail Application.
Mr.Shujaat Ali KhanAdvocate for Applicant.
Ms. RahatAhsan, DPG.
None present for complainant though served.
Date of hearing : 02.01.2017
Date of Order : 02.01.2017
ORDER
Abdul MaalikGaddi, J. – Applicant Muhammad Usman son of Muhammad Hassan seeks post arrest bail in case under FIR No.259/2016registered under Section 395 PPC at police station Mangopir, Karachi.
2. It is the case of the complainant as setup in the FIR that he had kept cattle i.e. 17 goats, 02 cubs and 02 calves for sacrifice on the ground floor of North Point Residency under two watchman. It is further alleged that on 01.08.2016 in the night, he received telephone call from his watchman namely Ghaffarthat some armed person had forcibly entered in the said area by breaking the lock and tied the two watchman and four labourers available there and taken away the said cattle in a truck and also snatched the cash amount of Rs.10,500/- as well as mobile phone.
3. It is contended by the learned counsel for the applicant/accused that applicant/accused is innocent and has been falsely implicated in this case due to enmity; that the name of the applicant/accused does not appear in the FIR; that the incident has been taken place on 01.08.2016 but the FIR has been lodged on 16.08.2016, after the delay of fifteen days for which no explanation has been furnished as such, according to him, false implication of the applicant/accused in this case after due deliberation and consultation cannot be ruled out; that the applicant/accused was arrested on 23.08.2016 while he was in jail in Crime No.353/2016 of P.S. Surjani and nothing has been recovered from his possession or pointation; that the identification parade has been held through P.W. Muneer and Sajjad, who are not the eye witness of the incident; that the identification parade was held on 03.09.2016, after ten days of the arrest of the applicant/accused, therefore, no reliance can be placed on this identification parade. Therefore, under the circumstances, learned counsel for the applicant submits that it is a case of further inquiry and till such time, the applicant/accused may be released on bail.
4. Learned DPG has opposed this bail application on the ground that PWs Munir and Sajjad had identified the accused during identification parade held on 03.09.2016 before Magistrate. Therefore, according to her,this applicant is not entitled for bail.
5. Arguments heard and record perused.
6. It is an admitted fact that incident took place on 01.08.2016, whereas, the FIR has been registered on 16.08.2016, after the delay of fifteen days for which, absolutely no explanation has been furnished, therefore, false implication of the applicant/accused in this case, after due deliberation cannot be ruled out. The name of the applicant/accused does not appear in FIR. No body description of the applicant/accused has been mentioned in the FIR. It has been brought on record that applicant/accused has been arrested in this case on 23.08.2016 when he was already in judicial custody in Crime No.353/2016 of police station Surjani. No recovery has been made in this case from the applicant/accused nor his pointation. The only evidence against the applicant/accused is that he has been identified by the P.W. Muneer and Sajjad, but it is surprising to note that these P.Ws. are not the eye witnesses of the incident, then how these PWs came to know that present accused had committed offence, such aspect of the case requires probe. No identification parade has been held through P.W. Ghaffar and Shahid, who were watchman and available at the place of incident. Admittedly, the applicant/accused was arrested 23.08.2016 but identification parade has been held on 03.09.2016, after the delay of ten days and the possibility cannot be excluded that the witnesses had seen the accused, therefore, under the circumstances, this aspect of the case also require further probe. During the course of arguments, I had specifically asked the question from learned DPG that the FIR is delayed by fifteen days and identification parade held after the delay of ten days of the arrest of applicant through the witnesses, who were not the eye witnesses of the case and nothing was recovered from his possession or pointation then how under these circumstances, bail could be refused to the applicant/accused, no satisfactory answer available with her.In this case, investigation has been completed andchallan has already been submitted against accused before trial Court, as such, this accused is no more required for investigation. This accused is behind the bar since his arrest.
7. For what has been discussed above, the case against the applicant/accused calls for further inquiry into his guilt covered by sub-section (2) of Section 497 Cr.P.C. The bail application is, therefore, allowed and the applicant/accused is admitted to bail subject to his furnishing solvent surety in the sum of Rs.50,000/- and P.R. bond in the like amount to the satisfaction of the trial court.
8. Needless to mention here that observations, if any, made hereinabove are tentative in nature and would not influence the trial court while deciding the case of the applicant/accused on merits.
JUDGE
Faizan/PA*