1. ' NADEEM AZHAR SIDDIQUI, J.---The applicant is facing trial under Crime No,86 of 2005 of Police Station Darri, Larkana under section 17(3) Offences Against Property (Enforcement of Hudood)
2. Ordinance, 1979. The allegations in the F.I.R. Are that at about 10-30 a.m. Four persons with open faces entered the house of the complainant and took out pistols from the fold of their trousers and pointed out the same at the complainant and asked the keys. Two of them entered the room and took out cash, gold ornaments from iron safe and then went to other room and also took out the articles from bag and then all the four persons went out and decamped.
3. ' The applicant was arrested on 4-10-2005 and the complainant has identified him in the identification parade.
4. ' The applicant has moved Bail Application No,630 of 2005 before the learned Sessions Judge, Larkana who dismissed the application with the following observations:-- "After hearing Advocates for both parties and perusal of record it transpires that the accused is not nominated in the F.I.R. Because the accused was not previously known to the complainant. The accused was arrested by the police in this case on 4-10-2005, and on the same day the accused was produced before the Court of IV Civil Judge and Judicial Magistrate, Larkana for the purpose of identification test, and the complainant in identification parade held before the Court identified him to be one of the same accused who at the time of incident was armed with pistol and he along with other co-accused committed decoity from his house. The incident has taken place at broad- daylight time, therefore, there is no question of misidentity of the accused at the hand of complainant. There is no enmity between the parties which could give rise to the presumption that the accused is falsely implicated by the complainant in this case. The accused was not arrested in 13-0 Pakistan Arms Ordinance case on 23-9-2005, as argued by the Advocate for the accused, but he was arrested by A.S.-I. Zubair Ahmed Shaikh and secured a .30 bore Pistol loaded with three live bullets of .30 bore, from his possession, from near hotel Ghulam Kadir Khuhawar, Darri Mohalla,Larkna on 13-10-2004, in Crime No,87 of 2005 Police Station Darri, offence under section 13- D Pakistan Arms Ordinance. Mere filing photocopy of a direct complaint alleged to be filed by the brother of the accused is not a ground for grant of bail".
5. ' The learned counsel for the applicant submits that applicant was arrested on 4-10-2005 in spite of the fact that his name was not appearing in the F.I.R. And no recovery has been made and the only evidence is the identification by the complainant and the accused was not put before the other witnesses for identification. He further submits that accused was under custody since 28-9-2005 and has been falsely implicated in the present case. The F.I.R. Was lodged after unexplained delay of about nine hours. The accused was produced before the learned Magistrate for remand on 28- 9-2005 and was found injured and this fact was recorded by the learned Magistrate in his order dated 8-10-2005. A direct complaint was also filed against the Police Officers by Manthar Khakhrani, brother of the accused, in which it was stated that applicant and others were apprehended by the police on 28-9-2005 and released others except Barkat, who was involved in a false case of 13(d) Arms Ordinance. From the perusal of the direct complaint it appears that the same was submitted before the learned Judicial Magistrate on 11-10-2005 after the arrest of the applicant in a case of 13(d) Arms Ordinance. As per the F.I.R. Registered under section 13(d) of Arms Ordinance, the applicant was arrested on 3-10-2005.
6. ' The learned Asstt. A.-G. Submits that the complainant has identified the applicant in the identification parade and that since the incident was committed in the broad-daylight, there is no question of mistaken identity and the allegations in the F.I.R. Are that four persons with open faces intruded into the house of the complainant and on the basis of show of pistols looted the complainant. On a question from the Court, the learned Asstt. A.-G., submits that the only evidence against the present applicant is the identification by the complainant and till today no recovery has been made from the applicant.
7. ' The learned counsel for the applicant relied upon following reported cases.
(1) Muhammad Yaseen v. The State (1995 PCr.LJ 711).
(2) Moula Bakhsh v. The State (2003 PCr.LJ 394).
8. In the first case, the learned Single Bench of this Court has granted bail with the following observations.
9. "6, Unexplained delay in lodging the F.I.R., recovery of only a watch and Rs,1,000 (Rs,500 each from two accused out of Rs,21,600) after about 11 days of arrest of the accused from the same place, no recovery of weapons, no recovery of golden ring and the statement of the accused under section 164, Cr.P.C. Coupled with most shocking and sorrowful investigation as pointed out in the aforesaid lines, left no doubt in my mind that there were no reasonable grounds for believing that the accused had committed the offence under section 17(3) of the Ordinance, as alleged against them but there were sufficient grounds for further inquiry into their guilt".
10. ' In the case of Moula Bux (supra) a Single Bench of this Court while granting bail in a case under section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance, 1979, has observed as under:-- "Admittedly the F.I.R. Was registered after the delay of 43 days' though the delay in registration of F.I.R. Has been explained even otherwise delay per se in registration of F.I.R. Cannot be a ground to make the case doubtful if there are other incriminating pieces of evidence against the accused.
11. The present applicants/accused were arrested on 14-2-2002 and the case has been challaned.
12. Nothing has been recovered from the applicants/accused and there is no incriminating piece of the evidence to connect to applicants/accused with the commission of crime except that they have been nominated in the F.I.R. The nomination in the F.I.R. Which is inordinately delayed has thus rendered the case against the present applicants/accused of further inquiry. In view of the case- law relied upon by the learned counsel for the applicant/accused the applicants/accused are entitled to the grant of bail.
13. ' Resultantly, the bail is granted to the applicants in the sum of Rs,100,000 (Rupees one lac) each and P.R. Bond in the like amount to the satisfaction of the trial Court".
14. I have considered the submissions of the learned counsel and have gone through the papers made available before me. In the F.I.R. The time of occurrence was stated as 10-30 a.m., whereas the F.I.R. Was lodged on the same day at 8-40 p.m. In the F.I.R. Delay of eight hours has not been at all explained. In the F.I.R. It is stated that the place of vardat is situated at a distance of four furlongs from the police station. The applicant is in custody since 4-10-2005 but till today no recovery has been made and there is no incriminating evidence available on record except the identification by the complainant. According to the F.I.R., there are other family members of the complainant present at the time of incident but to the reasons best known to the prosecution agency the applicant was not put before them for the purpose of identification and this creates doubts. The witnesses cited in the F.I.R. Are resident of the house where the incident took place and they are all closely related to each other. In the case of Moula Bux (supra) it was held that nothing has been recovered from the applicant and there is no incriminating piece of evidence to connect the applicant with the commission of the crime except that they have been nominated in the F.I.R. In the other case of Muhammad Yaseen (supra) it was held that after about 11 days of arrest no recovery of weapons and no recovery of golden ring was made. In this case also, the allegation is that the accused took away cash and golden ornaments from iron safe but till today nothing could be recovered from the applicant and the other co-accused are also not arrested till today. This also creates some doubt abouts the genuineness of the incident. As far as the identification parade is concerned, the same was conducted on 4-10-2005 at 1340 hours. The applicant was under custody as per Crime No,87 of 2005 since 3-10-2005 at 1730 hours in the same police station and the possibility cannot be ruled out that the applicant might have been shown to the complainant by the police at the police station prior to holding of identification parade. Since doubt has been created, the benefit of the same would go in favour of the applicant and this makes this case of further inquiry.
15. From the above discussion, I am satisfied that reasonable grounds do not appear to believe that the applicant is guilty of an offence punishable with death, transportation of life or imprisonment for more than ten years. I, therefore, grant bail to the applicant/accused subject to furnishing surety in the sum of Rs,100,000 with P.R. Bond in the like amount to the satisfaction of the trial Court.
16. In case the applicant misuse the concession of bail, the trial Court may cancel the bail and take action against the applicant as well as his surety in accordance with law.
17. ' The bail application is disposed of.