ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Criminal Bail Application No. 894 of 2016
Applicant: Mairaj s/o. Muhammad Tahir,
through Mr. Jamroz Khan Afridi,
Advocate.
Respondent: The State, through Mr. Muntazir Mehdi, APG.
Date of hearing: 18.01.2017
Date of order: 18.01.2017
-----------------
O R D E R.
Zafar Ahmed Rajput, J:- Through instant Criminal Bail Application, applicant/accused Mairaj s/o. Muhammad Tahir seeks post arrest bail in Crime No. 327 of 2015 registered at PS SITE-A, Karachi, under Section 393/34 P.P.C. Earlier his first bail application bearing Criminal Bail Application No. 1284 of 2015 was dismissed by the learned Sessions Judge, Karachi West, vide order dated 16.09.2015 and thereafter second bail application in Sessions Case No. 522 of 2016 was dismissed by the learned Additional Sessions Judge No. IV / Judicial Complex, Karachi South, vide order dated 04.06.2016.
2. It is alleged that the complainant, namely, Haji Akbar drives a Mazda, bearing Registration No. JZ-0129 and on 16.05.2015 at 6:30 p.m. applicant/ accused met him at Technical College Chowrangi for hiring Mazda from Simsons Chorangi to Rasheedabad, whom he told rent at Rs.2,000/- on that accused took his phone number and asked him that he would inform him on phone. Thereafter, on 19.05.2015 after Magrib prayer accused called him at Simson Chowrangi from where they jointly went to Jaffar International Compound, situated at Plot No.C-20 and when he went inside a room, he found there two persons duly armed. He, however, ran away from there and informed the police, whereupon police party also reached there but those persons were not present, who were about five in numbers. Then police checked the factory where 10/12 persons were confined and he also saw his Mazda, which was loaded with 5/7 shuttles. Thereafter, the present applicant/accused was arrested on 25.05.2015.
3. The learned counsel for the applicant/accused has mainly contended that the applicant is innocent and has falsely been implicated in this case; that the applicant has not been named in the F.I.R.; that there is delay of 15½ hours in lodging the F.I.R. despite the fact the police party reached the place of occurrence in few moments; that there is no allegation against the applicant that he had threatened the complainant; that the applicant is behind the bars since 25.05.2015 but the prosecution has failed to examine a single witness; hence the instant case is a fit case for further enquiry and the present applicant is entitled for the concession of bail even on merit. In support of his contentions, learned counsel for the applicant has placed reliance upon the cases of Zambeer vs. The State (2013 MLD 997), Saqib Raza vs. The State (2015 MLD 515), Ahmedo vs. The State (2013 MLD 1249) and Ali Akbar vs. The State (2011 P.Cr.L.J. 445).
4. On the other hand, learned APG has opposed this application on the ground that the complainant in his F.I.R. has mentioned the Hullia of the accused, who met with him on 16.05.2015 for hiring the vehicle of the complainant; thereafter the applicant on 19.05.2015 made a call to complainant asking him to bring his vehicle / Mazda at petrol pump from where the applicant brought the Mazda and the complainant at Jaffar International Compound where the applicant and his accomplices started looting cash and mobile phones from the employees of Hafsa Rice; that there is no enmity or ill-will of complainant to implicate the accused in commission of alleged offence and it was after the arrest of the accused in another case the complainant identified the accused to be the person who hired his Mazda. He added that the mobile phone call data of complainant as well as accused also supports the prosecution case; and since the prosecution has sufficient evidence against the accused to implicate him in commission of alleged offence, he is not entitled to the grant of bail.
5. Heard the learned counsel for the applicant/accused as well as learned APG for the State and perused the material available on record.
6. It appears from the perusal of the material placed on record that although the applicant/accused is not nominated in the F.I.R. by name but the complainant has given description of his body. The investigating officer during course of investigation has collected the call data of mobile phone of the complainant as well as of caller and it transpired that the sim used in the mobile phone of the caller stands in the name of accused. It further appears that the call data of the mobile phone of accused indicates his telephonic conversation with the complainant on 19.05.2015 at about 2021 and 2055 hours. It also appears that the applicant/accused was subsequently arrested on 25.05.2015 in another Crime bearing No. 330 of 2015, registered under Section 353/324 P.P.C. at PS SITE and; thereafter, the complainant was called at police station who identified him as his accused, so also, the employees of Hafsa Rice, including watchman Javed Akhtar have identified the accused to be one amongst other co-accused, who committed the alleged offence. The criminal record of accused also shows that, besides the instant case and the case referred above, he is also involved in atleast four other cases registered at PS SITE-A, bearing Crime Nos. 374/2007 & 832/2008, registered under Section 395 and Crime Nos. 883/2008 & 746/2010 registered under Section 13-D of Arms Ordinance. No enmity with the complainant or police officials has been alleged to implicate the applicant/accused falsely in commission of alleged offence. Offence under Section 393 P.P.C. is non-bailable and in non-bailable offence grant of bail is not the right of an accused but a concession. Although the alleged offence caries punishment for seven (07) years; as such, prohibition of section 497 Cr.P.C. does not attract but considering the fact that the offences like robbery/dacoity are frequently reported to have been committed without any restriction in urban and rural areas; not only creating scare among the people but ruining the safety of the life and property of law abiding citizens and also generating sense of insecurity amongst public at large; and also bearing in mind that the accused is involved in series of criminal cases, he is not entitled to concession of bail, so far the merit of the case is concerned.
7. I, therefore, dismiss this criminal bail application. However, the applicant/accused is at liberty to file fresh application on the ground of statutory delay before the trial Court, if so advised, which will be considered by the learned trial Court, if filed, in accordance with law.
JUDGE
Athar Zai