I shall decide Cr. M. No, 358/03 (Zulfiqar Ahmad vs. The State) and Cr.M. No, 387/03 (Shah Haroon vs. The State) by this single judgment as both emanate from the same FIR.
2. Having been involved in case registered vide FIR No, 371 dated 3.8.03 u/S. 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and Sections 400/401/411/412/109 PPC at P.S. Mirpur Abbottabad, the accused-petitioner Zulfiqar Ahmad (petitioner in Cr. Misc. No, 358/03) and Shah Haroon (petitioner in Cr.M. No, 387/03) filed separate applications for their release on bail in the Court of learned Judicial Magistrate but the same were dismissed vide orders dated 1.9.2003 and 4.9.2003 respectively. Thereafter, they approached the Court of learned Addl.
Sessions Judge, Abbottabad but their applications were dismissed vide consolidated order dated 6.9.2003. Now they moved this Court for their release on bail.
3. The complainant in writing reported that on 2.8.2003 at 9.05 p.m. five young persons aged about 20 to 30 years having good health duly armed with pistols entered his house and confined all the inmates of the house. They were tied up and their eyes were wrapped with cloths. After some time the complainant and his wife entered the house. They were given the same treatment by the dacoits. Their leader (of dacoits) was well built and appeared to be quite experienced and he would plan and execute everything. After tying all the inmates of the house they searched the entire house for hours and on pistol point forcibly took alongwith them gold ornaments weighing 20 Tolas, V.C.R. Dish Receiver, Mobile Set, Computer's CPU, licensed arms, Mecarof 16-M, .30 Bore Pistol, .30 Bore Carbine, .25 Bore Pistol and other things the details of which were to be given later on. After commission of offence they forcibly administerd/gave a syrup to all the inmates of the house and left in Suzuki Bearing No, PRD 9815 Model 1993.
4. Mr. Malik Manzoor Hussain the learned counsel representing Zulfiqar Ahmad accused-petitioner in Cr.M. No, 358/03 argued that accused-petitioner was in fact arrested on 5.8.2003 but police authorities with malafide intention showed him arrested on 11.8.2003. Identification parade of the accused was held on 25.8.2003. Though Dr. Tahir Salim identified the accused-petitioner twice but Tipu Muhabat Khan the other alleged eyewitness could not identify him. There was delay in conducting the identification parade which made the entire identification exercise as doubtful.
Reliance in this regard was placed on PLJ 2001 Criminal Cases (Lahore) 793 and PLJ 2001 Cr.Cases (Karachi) 964.
5. It was also argued that although some recovery has been shown to have been effected from the accused-petitioner, but the petition had no knowledge as to whether the items were stolen one. At the most if any case is made out, the same would fall u/S. 411 PPC Which entails three years punishment. Reliance in this regard was placed on 1999 P.Cr.L.J. 1315.
6. It was also argued that Gul Muhammad in his confessional statement did not state that accused-petitioner was also present at the spot and participated in the commission of offence. In fact he was not present on the spot at the time of occurrence.
7. Mr. Saeed Akhtar, Advocate the learned counsel representing Shah Haroon accused-petitioner in Cr.M. No, 387/03 argued that accused-petitioner was arrested on 7.8.2003, but was shown arrested on 11.8.2003 by the police authorities. He was working as Lab. Assistant in Ayub Medical Complex and had worked with Dr. Tahir Salim. Since he was already known to the complainant, therefore, there was no question of holding any identification parade by Dr. Tahir Salim and if the complainant had identified him, the accused was already known to him.
8. About the recovery it was stated that accused-petitioner had no knowledge that the articles were stolen, therefore, he could not be burdened with any criminal liability. He was not attributed any role at the time of identification. Reliance in this regard was placed on 1995 SCM R 127.
9. It was also argued that Gul Muhammad and Javed co-accused have already been released on bail, therefore, keeping in view the law of consistency the accused-petitioner is also entitled to be released on bail.
10. On the other hand Mr. Muhammad Ayub Khan DAG and Mr. Fazal Haq Abbasi, the learned counsel representing the complainant vehemently contested the grant of bail. They argued that the accused-petitioners were arrested on 11.8.2003 and from their possession articles taken over by them per force/on pistol point were recovered which articles were identified by the complainant to be the same.
11. It was also argued that the accused-petitioners were duly I identified by complainant as well as Tipu Muhabat Khan in the identification parade.
12. The accused-petitioners, it was argued, had committed heinous offence affecting the entire society, hence they were not entitled to be released on bail..
13. I have heard the learned counsel for the parties and perused the record carefully.
14. No doubt accused-petitioners were not charged in the FIR, but non-mentioning the names of the accused-petitioners in the FIR in dacoity matters is immaterial because it could not be expected that at the time of incident the accused would disclose their names and identity.
15. The accused-petitioners were arrested on 11.8.2003 and it was on the pointation of Zulfiqar that on 14.8.2003 from his shop a sum of Rs, 6000, digital diary, H.B.L. Credit Card in the name of Tipu Muhabat Khan and Passport No, J-057706 in the name of Dr. Tahir Salim were recovered. Similarly on the pointation of Shah Haroon Police recovered computer, Passport in the name of Farhat Rizvi, Omega wrist watch, Gold ear rings, Pistol .30 bore and Pistol .38 bore licensed in the name of Dr. Tahir Salim from the possession of accused. The learned counsel for the petitioners could not give any plausible explanation for the petitioners with regard to recovery of the above mentioned articles which had been effected, as mentioned above, on their pointation. The recovered articles were mentioned in the FIR and were identified by the Complainant also.
16. The argument of the learned counsel for the petitioners that the accused-petitioners had no knowledge that the recovered articles were stolen one has no force firstly because the accused petitioners were unable to explain as to how the recovered items came into their possession; secondly giving opinion at this stage of bail to the effect that the petitioners had no knowledge that the property was stolen in a dacoity would amount to deeper appreciation of evidence and it is settled principle that the Court seized of jurisdiction for examining question of bail should make only tentative assessm ent of facts without making detail reference to the merits. Wisdom in this regard has been gained from Muhammad Shahid vs. The State (2002 SCM R 247).
17. The accused-petitioner Zulfiqar was twice identified by Dr. Tahir Salim complainant, whereas accused Shah Haroon was identified by Tipu Muhabat Khan as well as Dr. Tahir Salim, complainant in identification parade held on 25.8.2003. Although holding of identification test is not requirement of law, but it is one of the methods to test the veracity of evidence of an eye-witness, who had an occasion to see the accused and claimed to identify him/them. In this regard wisdom has been drawn from Muhammad Akbar vs. The State (1998 SCM R 2538) and Gudoo alias Zulfiqar vs. The State (2000 P.Cr.L.J. 1212).
18. The perusal of the available record shows that the complainant immediately lodged written report to the SHO of the concerned Police Station. Not only the robbed articles which find mention in the FIR were recovered from their possession on their pointation but they were picked up in identification test held on 25.8.2003. Record does not show any enmity of the prosecution witnesses with the accused. No ill-will of the police officials with the accused-petitioners has also been pointed out. There was sufficient material available on record to prima facie connect the accused- petitioners with the commission of the offence, which was heinous one and was affecting the entire society. The commission of such offences has become fashion of the day which has not only ruined the safety of the life and property of law abiding citizens, but has also created a sense of insecurity amongst public at large. Since the punishment provided in almost all the sections of law made applicable in the case fall within the prohibitory clause of Section 497 (1) Cr.P.C. I am, therefore, not inclined to enlarge the accused-petitioners on bail. Resultantly, their bail applications are dismissed.