1. ' MUHAMMAD AFZAL SOOMRO, C.J.---By this order I intend to dispose of above Cr. Bail Application filed by applicant Abdul Qayyum son of Talib Hussain, facing trial in a case arising out of the F.I.R.
2. No,493 of 2007, under sections 397, 398, 392 and 34, P.P.C. Police Station "Sachal" Karachi.
3. ' Brief facts of the prosecution case, as gleaned from the F.I.R. Lodged by complainant Jalindar Khan, are that on 9-10-2007 under sections 397, 398, 34, P.P.C., stating therein that he was present at his adjacent house on 9-10-2007 all of sudden he heard the fire shots, whereupon he came out and saw that his nephew Ibrahim in injured condition, while one person was being beaten by people and his nephew. On his inquiry, they came to know that his nephew along with his mother and younger brother namely Waheed were returning back in Taxi after got the amount of rupees one lac from Al-Habib Bank, Stadium, Road, Karachi and when they reached at Bilawal Goth, at about 1145 hours in front of his house No,E/21 two persons came on motorcycle snatched cash Rs,1,15,000 from his nephew and one mobile phone of his younger brother Waheed on intervention they started firing, nephew sustained injuries by hitting something, one person holding pistol without magazine apprehended, the other person managed to escape on his motorcycle.
4. ' Bail application on behalf of the applicant was moved before the learned trial Court and the same was dismissed by the learned Vth. Judicial Magistrate Malir Karachi vide order, dated 18-12-2007.
5. Thereafter the applicant repeated his bail application before the Sessions Court Malir but the same was too dismissed by the learned Ist Additional Sessions Judge Malir Karachi.
6. ' Mr. Ghulam Rasool Mangi, `learned counsel for the applicant has argued that the applicant is innocent and he has been falsely implicated due to misconception. Learned counsel further argued that though the prosecution claims the arrest of applicant at the scene, but first information report, order dated 18-12-2007 .Passed by the learned trial Court and the order, dated 28-12008 passed by Ist Additional Sessions Judge, Malir, Karachi do not disclose the name of applicant as accused. Learned counsel also argued that defective investigation was carried out as no documentary evidence from the concerned bank has been obtained, furthermore there is nothing on the record of prosecution to show that P.W. Ibrahim along with P.W. Waheed went to Bank Al-Habib near Hassan Square Main University Road Karachi from where they claimed' withdrawal of one lac. Learned counsel submitted that P.W. Waheed in his statement under section 161, Cr.P.C. Has stated "that he himself kept one lac in his own pocket", P.W. Ibrahim in his statement under section 161, Cr.P.C. Has stated "that he himself kept the entire amount in his pocket" said P.W.
7. Has further stated that one person who have snatched cash from him managed to escape his good on his motorcycle". Learned counsel further submitted that both the prosecution witnesses are not sure as to who was, having one lac, the allegations of snatching are against the co- accused and not against the applicant, there is no recovery from the exclusive possession of the applicant. The applicant, was the passer-by and due to misconception he has been involved in this case. Learned counsel also submitted that most important witness is taxi driver, neither his statement under section 161, Cr.P.C. Was recorded, nor he has been cited as witness in the charge sheet. Learned counsel submits that the applicant is not involved in any criminal case prior to this, even the complainant has not implicated the applicant, he is old man and the police foisted a pistol without magazine upon the applicant. The applicant is in continuous custody for the last five months and the marriage of his daughter is being scheduled in the coming month. Learned counsel stressed upon his arguments that punishment is provided up to seven years, thus the alleged offence does not fall within the prohibitory clause of section 497(2), Cr.P.C.
8. ' Mr. Fazal-ur-Rehman Awan learned counsel appearing on behalf of the State opposed the grant of bail, but failed to controvert the submissions made by the learned counsel for the applicant.
9. ' I have heard the learned counsel for the respective parties and perused the record made available before me.
10. ' Admittedly name of the applicant does not transpire in the F.I.R., the allegation of snatching is against the co-accused, State counsel has not been able to show any record of Bank Al-Habib where P.W. Ibrahim in his statement under section 161, Cr.P.C., claimed withdrawal of one lac, he says that he withdrawn 102,900 from the bank, this P.W. Said that he himself kept the amount in his pocket, whereas the P.W. Waheed said that he has kept the entire amount in his pocket. The statements of both the witnesses are contradictory to each other, it is yet to be determined, from whom, the co-accused snatched the amount which makes the case of prosecution to be doubtful as such it requires further inquiry, so also the offence does not fall within the ambit of prohibitory clause of section 497, Cr.P.C.
11. ' In view of the above discussion, the applicant Abdul Qayyum has made out a case for grant of bail, therefore he is granted bail in the sum of Rs,1,00,000 (Rupees One Lac) with P.R bond in the like amount to the satisfaction of the trial Court.
12. ' Cr.B.A. No, 127 of 2008 stand disposed of.