ORDER SHEET
IN THE HIGH COURT OF SINDH AT KARACHI
Cr.B.Appl. No.1430 of 2013.
Date Order with signature of Judge
For hearing:
Mr. Muhammad Mustafa, Advocate for applicant.
Mr. Muhammad Iqbal Awan, APG.
.
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11.01.2014.
This bail application arises out of FIR No.254 of 2013 registered at Police Station Preedy South, Karachi, under Section 392/34 PPC on 09.07.2013 at around 2300 hours in which it has been alleged by the complainant that the complainant came down from a bus and was going on foot and at about 9.45 P.M, at Sarwar Shaheed Road, opposite Sarwan Hotel, Saddar, Karachi, suddenly two boys came on a motorcycle and the person who was sitting at rear seat, took an armed TT pistol upon him and asked him to handover whatever he had otherwise they will kill him. He became frightened and thereafter they snatched his Wallet containing 5/6 hundred rupees, One ATM Card of Islamic Bank, 4 photographs, documents of motorcycle bearing No.KEX 7473 and his mobile phone No.X-I Nokia with SIM No.0311 9292977 and Laptop lying in School Bag. Meanwhile the police mobile of Police Station Preedy came and on seeing the police mobile the culprits tried to run away and the complainant made hue and cry. Thereafter the Police officer namely ASI Gohar Mehmood chased them and one person who was apprehended by the police disclosed his name as Hamid son of Ishtaiq and on his personal search one TT Pistol was recovered and he disclosed his companion name as Farman son of unknown who managed to run away with his laptop and mobile phone.
3. The applicant, thereafter moved bail application before the Judicial Magistrate Karachi South which was dismissed vide order dated 23.08.2013 against which another bail application was filed before the District & Sessions Judge Karachi South which has also been dismissed vide order dated 16.09.2013. Now the instant bail application has been filed before this Court.
4. It is contended by the learned counsel for the applicant that although the applicant was arrested at spot, but nothing has been recovered from his possession. Per learned counsel no independent witness has come forward except the complainant, although the incident took place in a thickly populated area. Learned counsel further submitted that there is gross contradiction in so far as the alleged recovery of cash amount is concerned, as in the Mushirnama there is no such detail whereas before the trial Court the ADPP had given a false statement that an amount of Rs.100,000/- was recovered from the possession of the accused. Learned counsel further contended that the punishment for the alleged crime is minimum of three (3) years and a maximum of 10 years therefore; it does not fall under the prohibitory clause under Section 497 Cr.P.C. Per learned counsel, since the case is being tried in the Court of Judicial Magistrate, hence the case would be of minimum punishment. Learned counsel further submitted that based on all these contradictions the case is of a further enquiry, therefore, the applicant was entitled for grant of bail. Learned counsel relied upon the case of Asif Raza Vs. The State, reported in 2006 P.Cr. L.J 1628 and order dated 14.06.2010 passed by this Court in Crl. Bail Application No.481 of 2010 (Muhammad Iqbal Vs. The State).
5. Learned APG vehemently opposed the grant of bail to the applicant and has argued that it is a case of robbery and therefore of the accused including the absconder are responsible for the alleged crime. Learned counsel further argued that no enmity has been pointed out and the learned trial Court as well as District and Sessions Judge have rightly dismissed the bail application. Learned counsel relied upon the case of Suleman Vs. The State, reported in 2008 P.Cr.L.J.
6. I have heard the learned counsel for the parties and examined the record with their assistance. It appears that in the FIR, as per the version of the complainant cash amount of Rs.5/6 hundred in addition to other belongings, was taken away, however, nothing was recovered from the present applicant, except TT Pistol, for which separate case has been lodged under the Sindh Arms Act 2013 and for the disposal of the present bail application it is not relevant. Further, the amount of cash as mentioned in the FIR is Rs.5/6 hundred, whereas the learned ADPP before the Court of Judicial Magistrate had made a statement that an amount of Rs.100,000/- was recovered from the possession of the applicant. It is also an admitted fact that it is the only the complainant who had come forward with his version and despite of the fact that the place of incident is a busy area of the city, no other independent witness has come forward to support the case of the complainant. This prima facie leads to the conclusion that it is a case of further inquiry. It is also noted that the trial is being conducted by the Judicial Magistrate, who can award punishment of minimum 3 or 5 years therefore, the offence besides being bailable, also do not fall under the prohibitory clause and further on this ground also become a case of further inquiry as to what punishment the applicant would be liable to. This Court in Cr. Bail Application No.481 of 2010 in similar facts which was also a case under Section 392/34 PPC had granted bail to the applicant by observing as follows:-
“At the moment, I do not want to discuss the merits of the case as it may prejudice the case of any of the parties at the trial, but would like to point out that non-citing of private person as Mushir has made this case of further enquiry. Even otherwise, the offence does not fall under prohibitory clause and is a bail able offence. I am therefore of the considered opinion that the applicant is entitled to be released on bail. I would therefore, admit the applicant to bail subject to furnishing solvent surety in the sum of Rs.100,000/- and P.R. bond in the like amount to the satisfaction of the trial Court”.
7. In view of the foregoing, I was satisfied that the applicant had made out an arguable case for grant of bail and had therefor granted bail to the present applicant on 09.01.2014 on his furnishing surety in the sum of Rs.200,000/- and P.R. Bond in the like amount by means of a short order. The above are the reasons for the short order.
Shahid J U D G E