1. ' MUHAMMAD AFZAL SOOMRO, C.J.---I intend to dispose of the above bail applications by this common order as the same arise out of one and same F.I.R.
2. ' Criminal Bail Nos. 1009 of 2007 and 986 of 2007 are post-arrest bail applications while the third bearing No,.1071 of 2007 is pre-arrest bail in which applicant was granted interim pre-arrest bail on 1-12-2007 and today it is fixed for confirmation or otherwise.
3. ' The facts succinctly stated are that the complainant had to dispatch plastic grain to Lahore on 10- 5-2007. He contacted the owner of Messrs Arain Brothers Transport, Old Mauripur Adda and requested him to furnish 40 feet trawler for Lahore. He replied to provide the same and Muhammad Shahzad sent a Trawler No,TLK 012 along with container. Its driver Asghar Ali and Muneer Ahmed conductor Zulfiqar were with the said trawler. They loaded 1740 bags of plastic dana. 500 bags with the identification mark 5502 for Aslam Sardar, Lahore, 300 bags with identification mark "TR144" for Pak Noorani Plastic, Lahore and 930 bags with the identification mark TR 144 for Al-Sadiq Industries, Lahore. The same were loaded in the said trawler and dispatched at 6-00 p.m. The bilties and challan were also handed over. On 20-5-2007, Muhammad Shahzad informed on phone that they had been told by driver Asghar Ali that after loading above goods they proceeded towards Northern Bypass and reached main Hub River Road where at about 7-30 a.m. Four boys were present and made a signal to stop, then motorcycles arrived in front of the vehicle out of which four persons stepped in on the driver side and remaining two stepped in vacant seat side. They took out TT pistol and blind folded them and took to unknown place, where they unloaded the goods and took out Rs,10,000 and also mobile phone. Then accused escaped away after closing the cabin of the trawler at Bhains Colony.
4. ' It is contended by the learned counsel for the applicants that they have not committed the offence with which they are charged; that nothing has been recovered from them and alleged recovery has been foisted against them, there is nothing on the record to connect them with the present crime; that co-accused Bashir Ahmed and Zaheer Ahmed have already been granted pre- arrest bail by the trial Court; that one applicant was arrested on 28-6-2007 from Ghulshan-e- Hadeed at about 11-30 p.m. When the ADRC Police by violating the law and procedure forcibly entered the house of Muhammad Ashraf as a result of such illegality, complaint was made to various authorities including Chief Justice High Court and then the said application was transferred to the. Learned Sessions Judge, Malir who ordered for lodging the F.I.R. Against the police officers; that the police violated the provisions of section 173, Cr.P.C. And the applicant was confined in custody without challan, the said detention is illegal and reliance has been placed on 1999 PCr.LJ 1529; that F.I.R.No,125 of 2007 was lodged against the police officials by co-accused Malik Bashir Ahmed; that four accused persons were shown in the F.LR. But the police with mala fide intention booked 9 persons in this case; that this offence does not fall within the prohibitory clause of section 497, Cr.P.C.
5. ' Learned counsel for accused Abdul Rahman adopted the above arguments.
6. ' Learned counsel for accused Bashir Ahmed, who was granted interim pre-arrest by this Court while adopting the above arguments additionally contended that the applicant is a respectable businessm an and deals in the business of plastic grains. He used to purchase the same from a well reputed company Messrs Tri Pack Films Ltd. a Pak. Japan joint venture, and thereafter sells the same in the open market at Lahore for last 18 years; that Messrs Tri Pack Films Ltd. Has its two sales offices along with godowns, one at Karachi and other in Athar Estate Haripur N.-W.F.P.; that the plastic grains is used to be purchased by the applicant/accused in raw in original state and some time the same is to be purchased its waste, which is used to be sold after recycling by factories of the applicant/accused which business is being run in the name and style of his real son Asif Ali Malik; that entire property is belonging to applicant, hence no case punishable under sections 392/34, 411, 412, P.P.C. Can be established against the applicant. The learned counsel has relied upon the case of Shehzore and another v. The State 2006 YLR 3167 while considering post-arrest bail learned Single Judge has arrived at the conclusion that on appraisal of Section 395, P.P.C.
7. Provides that whoever commits dacoity shall be punished with imprisonment for life, or rigorous imprisonment for a term which not be less than four years nor more than ten years and shall also be liable to fine. The sentence not less than four years was incorporated by Ordinance II of 1980 on 3rd February, 1980 which makes the intention of the legislature very clear that when the case is registered under section 395, P.P.C. The Court cannot award sentence not more than ten years. This view also followed in the case of Arshad Mehmood v. The State 1985 PCr.LJ 2048 and Muhammad Akhtar v. The State 1984 PCr.LJ 2340. It is further contended that undoubtedly the crime should not go unpunished, but the stage of retribution has not come.
8. ' Learned counsel for the State has opposed the grant of bail by contending that the applicants are involved on the pointation of co-accused as such their complicity in this case cannot be overlooked.
9. I have considered the respective contentions of the learned counsel for the parties. In case of imminent arrest at the hands of police and the scenario set up by the complainant for implicating the applicants in the commission of heinous crime, it is to be seen as to what is the scope of section 392, P.P.C. With which the applicants are charged primarily. In the case of Shehzore and another (supra) while considering post arrest bail learned Single Judge has arrived at the conclusion that on appraisal of section 395, P.P.C. Provides that whoever commits dacoity shall be punished with imprisonment for life, or rigorous imprisonment for a term which not be less than four years nor more than ten years and shall also be liable to fine. The sentence not less than four years was incorporated by Ordinance II of 1980 on 3rd February, 1980 which makes the intention of the legislature very clear that when the case if registered under section 395, P.P.C. The court cannot award sentence not more than ten years. This view also followed in the case of Arshad Mehmood v.
10. The State 1985 PCr.LJ 2048 and Muhammad Akhtar v. The State 1984 PCr.LJ 2340. In the present case recovery has not been made from the exclusive possession of the applicants, their names do not appear in the F.I.R., their involvement in this case is on account of co-accused and allegedly confession by some of them which is not admissible. In these circumstances, the case requires further inquiry.
11. ' In view of the above circumstances, I grant bail to applicants Malik Sher Afzal and Abdul Rahman on furnishing surety in the sum of Rs,100,000 each and P.R. Bond in like amount to the satisfaction of the trial Court, while the interim bail of accused Bashir Ahmed is confirmed on the same terms.