ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

Cr. B. A. No.725 of 2015

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DATE ORDER WITH SIGNATURE(S) OF JUDGE(S)

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For hearing

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12.08.2015

Mr. Ghulam Murtaza Bhutto, advocate for applicants/accused

Mr. Abrar Ali Khichi, A.P.G.

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NAIMATULLAH PHULPOTO, J.--- Applicants/accused seek bail after arrest in F.I.R. No.89/2015, registered at P.S. Bahadurabad, Karachi East under sections 392/34 PPC.

Brief facts of the prosecution case as disclosed in the F.I.R. are that present incident occurred on 04.03.2015 in Meezan Bank ATM room, Ghazi Salahuddin Road, Dhoraji Branch, Karachi. Complainant Ayaz Ali lodged F.I.R. on 13.03.2015 alleging therein that on 04.03.2015 he went to ATM machine of Meezan Bank, Dhoraji Branch, Karachi. He had drawn cash of Rs.10,000/- through ATM. As soon as he came out of the ATM machine room, two accused persons, who were wearing pant-shirts, aged about 25 to 30 years, appeared and again pushed the complainant in the room where ATM machine was installed. By show of force they compelled the complainant to draw more money. In all Rs.43,000/- were drawn through ATM card by the complainant which were snatched by the accused persons and they succeeded in running away. F.I.R. of the said incident was lodged by the complainant at police station Bahadurabad under sections 392/34 PPC.

It is alleged that both the accused were arrested in another case on 06.05.2015 after 61 days of registration of the F.I.R. It is stated that both the accused during interrogation admitted before the IO that they had snatched cash of Rs.43,000/- from the complainant in Meezan Bank complainant had drawn such amount from the ATM machine. Thereafter, investigation officer proceeded to Meezan Bank, Dhoraji Branch and collected CCTV footage. Thereafter, complainant was called at police station and he identified both the applicants/accused to be involved in the commission of offence. On the conclusion of investigation challan was submitted against the applicants/accused under sections 392/34 PPC.

Bail application was moved on behalf of applicants/accused before learned V Additional Sessions Judge, Karachi East, the same was rejected by him vide order dated 06.06.2015, thereafter, applicants/accused have approached this Court for the same relief.

Mr. Ghulam Murtaza Bhutto, advocate for applicants/accused, mainly contended that after arrest of applicants/accused no identification parade was held before the Magistrate. He has argued that complainant has not mentioned description of the accused persons in the F.I.R. It is also argued that no cash or weapon has been recovered from applicants/accused. He has submitted that investigation is complete and the applicants/accused are no more required for investigation. In support of contentions he relied upon the cases reported as 2004 PCr.LJ 1422 [Karachi] (Asif versus the State), 2010 YLR 587 [Karachi] (Saif-ur-Rehman versus the State), 2011 YLR 2324 [Karachi] (Zohaib Yameen Shaikh versus the State) and 2012 MLD 707 [Sindh] (Muhammad Babar versus the State).

Mr. Abrar Ali Khichi, learned Assistant Prosecutor General Sindh, argued that delay in lodging of F.I.R. is immaterial in this case. He further argued that both the applicants/accused during interrogation in some other case in the custody of police admitted to have committed the alleged offence and IO collected CCTV footage, on the basis of sufficient evidence challan has been submitted. He opposed the bail application.

After hearing the learned counsel for the parties I have perused the relevant record. It appears that F.I.R. was lodged by complainant Ayaz Ali against unknown persons on 13.03.2015 regarding the incident occurred on 04.03.2015. In F.I.R. description of accused persons is not mentioned. It is the case of the prosecution that both the applicants/accused were arrested by the police in some other case and during interrogation they admitted that they had committed the alleged offence, thereafter, IO collected the CCTV footage and complainant appeared at police station and identified the accused persons. It appears that applicants/accused were arrested by the police in some other case after 61 days of the incident. Despite collection of CCTV footage applicants/accused were not put to the identification parade before the Magistrate. It is also matter of record that cash snatched from the complainant has not been recovered from the possession of the applicants/accused. Weapons which accused were carrying at the time of incident were also not recovered from the accused persons. In CCTV footage, weapons have also not been shown in the hands of the accused persons. In these circumstances, it appears that learned advocate for applicants/accused has rightly relied upon the cases of Farman Ali versus State (1997 SCMR 971) and Muhammad Babar versus the State (2012 MLD 707 [Karachi]). In the case of Muhammad Babar it has been observed by this Court as under:-

It is admitted positions that the name, hulia or any description of the applicant/accused has not been mentioned in the F.I.R. and the F.I.R. was lodged after the unexplained delay of about thirty days by the Site Supervisor of the Security Company instead of Muhammad Ameen from whom the repeater gun was snatched allegedly by the applicant/accused. It is also an admitted position that the identification parade of the applicant/accused was not held before the Judicial Magistrate, which is necessary in the cases where the name of the accused is not mentioned in the F.I.R. If any authority is needed, reference can be made to the case of Farman Ali v. The State reported in 1997 SCMR 971, wherein the honourable Supreme Court has held that:--

"Holding of identification test becomes necessary in cases, where names of the culprits are not given in the F.I.R. Holding of such test is a check against false implication and it is a good piece of evidence against the genuine culprits. Holding of identification test cannot be dispensed with, simply because the person accused of committing the robber, has been subsequently found in possession of the robbed goods. It is not necessary that the eye-witnesses of the robbery should have witnessed the recovery of the robbed property. It was not the prosecution case that the recovery of the robbed truck took place in presence of the complainant and his cleaner and hence identification test of the petitioner through the complainant and Qamar Shahzad was absolutely necessary….”

In view of above, it appears that there are no reasonable grounds that applicants/accused have committed the alleged offence. Prima facie, case of applicants/accused requires further inquiry as contemplated under section 497(2) Cr.PC. Concession of bail is extended to applicants/accused Waheed son of Syed Manan and Junaid Khan son of Hidayatullah subject to furnishing solvent surety in the sum of Rs.200,000/- each and P.R. bond in the like amount to the satisfaction of the trial Court.

Needless to mention here that observations made herein above are tentative in nature, the trial shall not be influenced by such observations while deciding the case on merits.

Bail application is accordingly disposed of.

J U D G E

Gulsher/PA