1. ' Briefly stated the prosecution case per F.I.R. No,31 of 2002 of Police Station Matiari lodged on 3-6- 2002 by the complainant Ali Hassan are that he is the General Manager of Sarhad Goods Transportation Company belonging to one Choudhry Barkat. On 27-5-2002 at 5-30 a.m. Their Hino Truck bearing No, GLT-8598 driven by Ashique Hussain along with cleaner Asghar Ali loaded six hundred cartons of Morven cigarettes at Messrs Lakson Tobacco Company's godown at Kotri for transportation to Nawabshah. At 10 a.m. On the same day when Iqbal, the Manager of the Company enquired from the Manager of Lakson Company regarding arrival of the truck at Nawabshah, a negative reply was received, which was repeated even at 12 noon. This alarmed the complainant who informed Choudhry Barkat at which the latter told him to trace out the truck. The complainant then set out in a Land Crusier along with driver Zafar in search of the same. At 6-30 p.m. Just beyond Kazi Ahmed they saw their truck crossing them at a very fast speed followed by a Toyota Corolla car upon which they turned around and started following these two vehicles. At this the Toyota Corolla car also turned around and sped towards Moro side. The complainant party then came along side the truck which was speeding at 120 K.P.H. And saw three persons sitting inside i,e, driver Nazir Dal, Ghulam Kadir and Gidoori Khoso. Ghulam Kadir pulled out a pistol and threatened them whereas Nazir Dal tried to dash the truck against the complainant's vehicle. At this he abandoned the chase and came back to Kazi Ahmed, where the matter was reported to the police authorities and they decided to return to Hyderabad. At about 9 p.m. When they reached Halla Naka they saw driver Ashique Hussain and cleaner Muhammad Saleem who told them that at 6-30 a.m. Of the same day 9/10 fully armed persons chased their truck in another Bedford truck and stopped them who were identified by them as Phoro Gidoori Khoso, Ghulam Kadir Bakhrio, Tajoo Gidoori Khoso, Faizoo Majeedano, Akbar Khashkeli, Ghulam Khashkeli, Nawaz Khan Khashkeli and Nazir Ahmed Dal. Some of the said accused persons hijacked the truck and the remaining accused after tying up the driver and cleaner put them in the rear of their own truck and they were later on abandoned on the highway at a remote area. They were rescued by some persons and then found themselves between Sukrand and Qazi Ahmed; they then boarded a bus and reached Hyderabad. Thereafter the matter was reported to the owners, who told the complainant that there was no possibility of obtaining the stolen goods through negotiations and hence the F.I.R. Was lodged.
2. ' During the investigation of the above crime, the police acting upon spy information on 4-7-2002 reached the link road between Tando Fazal and Lundi minor near Hyderabad and apprehended some persons unloading the stolen cigarette cartons from Truck No,GLT-8598 and loading them in another truck. These persons disclosed their names as Ali -Khashkeli, Nazir Ahmed Dal, Ali Nawaz Khashkeli, Murad Ali A Khashkeli, and Asif Rajput. One accused fled away whose name was later on disclosed by the apprehended accused as Muhammad Ahmed All the accused persons as well as the two trucks were taken into custody.
3. ' On the basis of foregoing facts and circumstances, learned counsel for the applicant Ali Khashkeli has firstly submitted that there is a delay of five days in registration of the F.I.R. As the incident is stated to have occurred on 28-5-2002 whereas the F.I.R. Was lodged on 3-6-2002 which has not at all been explained by the prosecution. Secondly, per learned counsel the report lodged by the complainant at Qazi Ahmed Police Station on the same day has been totally suppressed by the police authorities for reasons best known to them. Learned counsel has further submitted that strangely enough the recovery of the trucks and only 100 cartons of cigarettes have been shown on 4-7-2002 after 35 days of the incident near Hyderabad. Again, the confession of the present applicant/accused has been recorded on 8-7-2002, which per learned counsel cannot be relied upon at this stage, as it is belated. Finally, co-accused Ali Nawaz, Murad Ali, Muhammad Saleem and Muhammad Ahmed are on bail and since their cases are at par with that of the present applicant, hence on the principle of consistency he also deserves the same concession. In support of his submissions, learned counsel relied upon Salabast v. State 1975 PCr.LJ 451, Muhammad Waseem v. State 1998 PCr.LJ 435 and Abdul Aziz v. State 1996 SCM R 1693.
4. ' On the other hand, the learned A.A.-G. Has opposed the grant of bail on the ground that the present applicant along with five other accused were apprehended with the stolen property on 4- 7-2002 under a proper Mashirnama. Secondly, per learned A.A.-G. The present accused has confessed to the crime and hence per settled law he could be convicted on this sole piece of evidence alone, even though it may be retracted by him in support of which he has cited Tariq Hussain Shah v. State 2003 SCM R 938.
5. ' In reply Mr. Qurban Ali Chohan has submitted that the entire case of the prosecution per the F.I.R.
6. Has been demolished per the enquiry carried out by the then T.P.O. Cantonment Hyderabad (A.S.P.
7. Muhammad Gohar Nafees) according to which, Truck No,GLT-8598 was recovered on the day of the incident viz. 28-5-2002 by Ali Hassan Abbasi the complainant and driver Zafar Iqbal along with 500 cartons of cigarettes. Thereafter, one accused Nazir Dal was handed over to Qazi Ahmed Police, 100 cartons of cigarettes were purchased from the market and accordingly the entire quantity viz. 600 cartons were deposited with Lakson Company Nawabshah godown. This fact is borne out by the Gate Pass No,1073 of Lakson Tobacco Company. Consequently, per learned counsel Muhammad Saleem who was arrested along with the co-accused on 4-7-2002 was given bail by this Court in Criminal Bail Application No,361 of 2003 on the basis of the enquiry report, which had belied his arrest and recovery of the truck/cigarettes.
8. ' I have heard learned counsel as well as learned A.A.-G.
9. ' It would be seen that this is a case of two versions, as the incident as narrated in the F.I.R. By the complainant has been belied by the subsequent investigation of the case, according to which, the truck in question along with 500 cartons of cigarettes were recovered on the same day viz. 3-6- 2002 and accused Nazir Dal was handed over to Kazi Ahmed Police. Thereafter 100 cartons of cigarettes were purchased from the market and total 600 cartons were deposited with Lakson Tobacco Company godown at Nawabshah under a proper receipt. In these circumstances the arrest of the applicant along with other co-accused on 4-7-2002 along with the truck and stolen cigarettes seems quite strange. Secondly, the F.I.R. Is delayed by 5 days for which no plausible explanation has been given. Insofar as the confession is concerned, again it was recorded on 8-7- 2002 on the fourth day of the applicant's arrest, which has not been explained as well. Finally, it would be seen that co-accused Muhammad Saleem whose case is identical to that of the present applicant has been released on bail vide order, dated 28-8-2003 passed in Criminal Bail Application No,361 of 2003. In the circumstances, I would allow this bail application, as the case of the present applicant is one of further inquiry. He shall submit surety in the sum of Rs, two hundred thousand and P.R. Bond in the like amount, to the satisfaction of the learned trial Court.