IN THE HIGH COURT OF SINDH AT KARACHI

Present:

Mr. Justice Fahim Ahmed Siddiqui

Criminal Bail Application No. 1773 of 2016

M. Babul Bangali and 02 others………………...…………………..Applicants

Versus

The State…………………………….……………..……………….Respondent

Date of Hearing & Order : 20.02.2017

Mr. Muhammad Rafiq Brohi, advocate for the Applicants

Mr. Hassan Sabir, advocate for the Complainant

Mr. Ali Haider Saleem, APG for the State

O R D E R

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FAHIM AHMED SIDDIQUI, J: This order will dispose of instant application for post arrest bail for three applicants namely M. Babul Bangali, Nadeem Jan @ Babbi and Cecil Pervaiz @ Shah Ji, who are facing trial in Crime No.475/2016 under Section 392/34 PPC of PS Darakhshan.

2. The allegation against the applicants is that they alongwith absconded co-accused persons entered into house of the complainant and on the show of weapons, got controlled over the inmates of house and deprived the complainant party from valuable articles including gold ornaments, laptop, mobile phones and other electronic appliances.

3. Learned counsel for the applicants made his submissions at length. The thread of his arguments is that the applicants were previously arrested in a case of Arms Act and subsequently they were forced to confess their involvement in the instant case and such confession is inadmissible under the provisions of Qanun-e-Shahadat Order, 1984. There is delay of 31 days without convincing explanation. Identification test was held after one month of incident and three days of arrest without fulfilling requirements of Rule 20.32 of Police Rules, 1934. Alleged recovery is also doubtful as the same is on joint pointation of arrested accused. Identification of alleged stolen articles was not made before concerned Magistrate as such it is also doubtful and attracts possibility of foisting on the applicants. The recovered articles did not tally with the articles as mentioned in FIR. Applicants succeeded in getting bail in similar type of cases i.e., FIR No.114/2016 under Section 392 PPC of PS Gizri, FIR No. 356/2016 under Section 392 PPC of PS Darakhshan and FIR No. 61/2016 under Section 392 PPC of PS Darakhshan. Therefore, the applicants are entitled to be released on bail in the instant matter also. Applicants are not previous convict nor they are hardened desperate. He took reliance from 2011 SCMR 1686, 1993 PCrLJ 769, PLD 2002 Karachi 98, 2002 PCrLJ Karachi 518 and 2015 PCrLJ Sindh 1448.

4. Learned counsel for the complainant opposed instant bail application. According to him, admittedly the applicants are involved in similar type of cases as such they are offenders against society. Identification test was done before the Magistrate and the same is frivolous. If the applicants are released on bail, then there is chance of repetition of offence. Learned APG for the State after adopting arguments advanced by learned counsel for the complainant, submitted that the complainant has properly identified accused persons. As per CRO report, the applicants have a criminal record since 2003. Recovery in the instant case as well as other cases were also effected from possession of the applicants.

5. I have heard arguments and have gone through the available record. In the instant matter, following points require consideration:-

A) Leaned counsel for the applicants emphasized upon involvement of applicants on the basis of confession before the Magistrate for which he took plea that same is inadmissible. In this respect, he took reliance from 2011 SCMR 1686 and 2015 PCrLJ (Sindh) 1448. In this regard, my observation is that in the instant case, not only the applicants are involved on the basis of their confession before police but also the recovery has been effected from their possession as such Article 40 of Qanun-e-Shahadat Order. Sufficient corroboration is available regarding their involvement in the offence.

JUDGE