ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

CR. BAIL APPLN. NO. 1457 / 2013

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ORDER WITH SIGNATURE OF JUDGE

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For hearing.

17.01.2014

            Mr. Zamanullah for applicant.

            Mr. Zahoor Shah APG.

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The instant bail application arises out of FIR No. 19/2013 registered at P.S. Airport, Karachi under Sections 392/34 PPC on 12.2.2013 at around 0440 hours in which it has been alleged that the complainant who is working as Head Cashier at Petrol Pump situated at Kala chapra, Shahrah-e-Faisal, Karachi, sitting in his office on 12.2.2013 at about 0400 hours when two boys came on a motorcycle and on gun point snatched cash Rs. 6000/- from night shift cashier namely Muhammad Wali Khan and one mobile phone from another employee of the pump namely Imtiaz and tried to escape. However, police constable Shakoor Ahmed who was on duty and present at the petrol pump caught hold of one of them and in the meantime a police mobile of P.S. Airport under the supervision of ASI Sikandar Ali came and consequently the said person was arrested. On query  the person disclosed his name as Muhammad Riaz S/O Khuda Bux and from his possession one pistol with loaded 3 live rounds including cash of Rs. 6000/-  and mobile phone was recovered.

2.          The applicant thereafter filed bail application before the IInd Additional Sessions Judge, Malir which was rejected vide order dated 11.4.2013. Subsequently, another bail application was filed before the same court which was also dismissed vide order dated 2.10.2013 on the ground that the earlier order of rejection of bail was not challenged any further before the High Court and their existed no fresh ground. Thereafter the instant bail application has been moved before this Court. 

3.           It is contended by the learned counsel for applicant 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. and this aspect has not been considered by the learned Trial Court while dismissing both the bail applications of the applicant. Learned counsel also submitted that the applicant is behind the bars for almost a year now and the trial has not proceeded therefore, the applicant was entitled for grant of bail. Learned counsel also submitted that in fact the complainant in the instant matter is the head cashier of the petrol pump who at the relevant time was sitting in his office and therefore, he is not an eye-witness in the case and further the persons from whom allegedly cash and mobile phone was snatched have not come forward as complainant in the matter. He further submitted that there is personal enmity between the head cashier and the applicant as the applicant resides in the same area. It was also argued that the applicant is of tender age of only 22 years and there is no record of his involvement in any previous crime. It was further contended that till date, despite lapse of almost a year, no identification parade has been carried out.

4.             Learned APG has opposed the grant of bail and has argued that no fresh ground has been raised in the instant bail application. It was further contended by him that the applicant was arrested on the spot and the FIR was lodged timely and as an indulgence this Court can direct the trial court to proceed with the trial expeditiously.

5.            I have heard both the learned counsel and examined the record with their assistance. It appears from the FIR that though the incident allegedly happened with the two employees of the said petrol pump but surprisingly complaint has been lodged by its head cashier who was not present at the time of incident and was in fact sitting in his office. It further appears that due to this fact even the registration number or model of the motorcycle on which allegedly the accused came has not been mentioned as the complainant is not the eye-witness of the incident. It is also noted with concern that 11 months have passed, as informed, and the case has not proceeded so far in the Trial Court. Moreover the offence also does not fall within the prohibitory clause of Section 497 Cr.P.C as the punishment is from minimum 3 years to a maximum of 10 years and the gravity of the offence is yet to be determined. In these circumstances and for the reason that the applicant is behind the bars for more than 11 months entitles the applicant for grant of bail. The order dated 11.4.2013 through which the first bail application was rejected by the learned IInd Additional Sessions Judge has not recorded any appreciable reason except that the rampant law and order situation prevailing in the city is an impediment in the grant of bail. I am afraid that this could not be the only reason for rejection of bail. The ground that the person was arrested at the spot and some recovery was made is also not an obstacle in the grant of bail and this Court in the case of ALI AHMED VS. THE STATE reported in 2007 YLR 1144 on similar facts for an offence falling under section 392 PPC has granted bail. Further, it is a settled proposition of law, that in cases which do not fall under the prohibition clause under section 497 Cr.P.C. grant of bail is a rule and refusal is an exception.

6.            In view of the foregoing I was satisfied that the applicant has made out a case for grant of bail and had therefore granted bail to the applicant subject to furnishing surety in the sum of Rs. 50,000/- (Rupees fifty thousand) and P.R. bond in the like amount to the satisfaction of the trial court by means of a short order and the above are the reasons for the same.

J U D G E

ARSHAD/