ORDER SHEET

IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

                                       Cr.Bail.Appl.No.S- 579   of    2015

DATE        ORDER WITH SIGNATURE OF JUDGE

14.09.2015.

            Mrs. Razia Ali Zaman Khan Patoli, Advocate for applicant.

            Mr. Iram Ahmed, D.D.P.P.

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ABDUL MAALIK GADDI, J:         Having remained unsuccessful in obtaining his release on bail in Crime No.251/2014 registered u/s 395 PPC at Police Station Naseem Nagar @ Qasimababad, Hyderabad, the applicant Muhammad Salman son of Zulfiqar Ali now seeks his release on bail in the aforementioned crime through instant bail application.

2.         Facts necessary for disposal of this bail application are that on 13.12.2014 at 1850 hours, complainant was present at his home alongwith his nephews Iftikhar Ali, Israr Ali and Akbar Ali when the bell of his house ranged up; his nephew Akbar Ali went to the door and enquired who are you, the persons replied him to come for serving Niaz, when his nephew opened the door, three unknown persons entered in the house, out of them one had dagger in his hand and two had pistols in their hands who closed the complainant party in a room on gun point and robbed wear articles and told that their companions are outside and accused started searching the house and robbed the property, detail of which is mentioned in the FIR. Thereafter, accused persons threatened the complainant party to remain mum and ran away on their motorcycles.

3.         Learned counsel for the applicant submits that applicant / accused is innocent and has falsely been implicated in the case in hand; that co-accused Muneeb Ahmed alias Faraz has been granted bail by the trial Court; FIR is blind whereas no name of the applicant / accused appears in the FIR nor any description of the applicant / accused has been given in the FIR by complainant party; applicant is minor and is confined in Youthful Offender Industry School and is no more required for further investigation by the prosecution; the arrest and recovery of applicant / accused is shown to have been affected on 12.01.2015 after about one month of the alleged incident which needs thorough probe. In support of her contentions, learned counsel has placed reliance on the cases reported as Muhammad Suleman v. Riasat Ali and another (2002 SCMR 1304), Syed Muatasim Wasit alias Momi v. The State and another (2010 P.Cr.L.J 477), Liaqat Ali v. The State (2009 P.Cr.L.J 413), Madiha Jabeen v. The State (2009 P.Cr.L.J 82) and Nasir Khokhan v. The State (2006 YLR 3042).

4.         Learned D.D.P.P. has vehemently opposed this bail application and contended that recovery of robbed articles was affected from the possession of applicant in presence of mashirs namely Ikhtiar Ali and Imtiaz Ali.

5.         I have considered the arguments advanced by learned counsel for the parties and gone through the material available on record.

6.         It is an admitted fact that neither the name of applicant transpires in the FIR nor the complainant party had given any description of the applicant and there are general allegations against the applicant. FIR has been lodged by complainant on 13.12.2014 whereas the police papers show that the present applicant / accused was arrested and recovery was allegedly made from him on 12.01.2015 after a delay of about month, in presence of mashir Ikhtiar Ali s/o Allah Rakhi who is brother of complainant and another mashir Imtiaz Ali who is son of complainant, therefore, their evidence need to be deeply scrutinized at the time of trial. No independent witness of the locality has been cited to act as mashir. No reason whatsoever has been assigned why the police did not make efforts to make any private and independent mashir of the locality to witness the arrest and recovery of applicant. No identification parade has been held. It is settled law that non-holding of identification parade after arrest of the accused persons has brought this case within the purview of Section 497(2) Cr.P.C. as held in the case of Muhammad Sulleman v. Riasat Ali and another, reported in 2002 SCMR 1304. Moreover, co-accused Muneeb having identical role to that of applicant has already been granted bail by the trial Court therefore, on the rule of consistency also, the present applicant / accused is entitled to the same treatment.

7.         Since the bail to present applicant / accused has been rejected by the trial Court mainly on the ground that robbed articles have been recovered from his possession in presence of mashirs, but as observed above, both mashirs are the brother and son of the complainant, therefore, on this ground also the case of applicant requires further probe to the affect that whether the alleged recovery has been affected from the possession of applicant in a fashion as alleged by the prosecution or otherwise. Admittedly, challan has been submitted and the applicant / accused is no more required for investigation. There is nothing on record to show that previously the present applicant / accused has remained indulged in such like cases.

8.         In view of what has been discussed above, I am of the considered view that the present applicant has succeeded to make out a case for grant of bail. Accordingly, he is granted bail subject to his furnishing solvent surety in the sum of Rs.200,000/- (Two lac) and P.R. Bond in the like amount to the satisfaction of the trial Court.

9.         The observations made hereinabove are tentative in nature and shall not prejudice the case of either party at the time of trial.

                                                                                                            JUDGE

Tufail