1. ' MUHAMMAD ATHAR SAEED, J.---This bail application has been filed against the order of the II- Additional Sessions Judge, Larkana, dated 26-1-2006, in Crime No,77 of 2007, registered at Police Station Ratodero, for offence under section. 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979.
2. ' Brief facts of the case as narrated in the F.I.R. Lodged on 26-6-2005 are that on 18-6-2005 at about 1300 hours when the complainant, his brother Arbab Ali and relative Ghulam Akbar were travelling on motorcycle No,LAA-2125 for their personal work from Mirpur Bhutto to Ratodero, they were stopped by the force of weapons by three unknown culprits with open faces and robbed of their motorcycle, one Seiko-5 watch, cash amount of Rs,12560 and they also snatched the NIC, Photostat attested documents of the motorcycle, service card and other documents and escaped on the motorcycle. The complainant party with the help of villagers and foot tracker tracked the prints starting from the place of Wardat, which led them to the house of Hussain Bux Jalbani, who kept him on false hopes of returning the robbed articles and subsequently refused and, therefore, he filed the F.I.R.
3. ' The learned Additional Sessions Judge, Larkana while dismissing the bail application conceded that the name of the applicant/accused is not mentioned in the F.I.R. And no identification parade has been held by the police, but he appears to be impressed by the fact that the robbed property had been recovered from the present applicant.
4. ' I have heard Mr. Rasool Bux Soomro, learned counsel for the applicant and Mr. Muhammad Ismail Bhutto, learned State Counsel.
5. ' The main contention of the learned counsel for the applicant was that since the name of the applicant was not mentioned in the F.I.R., it was essential that the identification parade should have been held, so that it could be proved beyond doubt that the applicant was one of the unknown culprits mentioned in the F.I.R. He further submitted that the F.I.R. Was lodged eight days after the incident and the delay has not been explained by the complainant. The learned counsel also submitted that the mashirnama in respect of the robbed articles was prepared in violation of section 103 of the Criminal Procedure Code. He also stated that the offence does not fall within the ambit of the exception to section 497, Cr.P.C. And the applicant was entitled to bail. He, therefore, prayed that the applicant may be released on bail. In support of his contentions, the learned counsel for the applicant relied on the following judgments:-
(1) Muhammad Suleman v. Riasat Ali 2002 SCM R 1304.
(2) Allah Wasaya v. The State 2004 PCr.U Lah.
6. 1659.
7. ' Mr. Muhammad Ismail Bhutto, learned State Counsel, opposed the grant of bail, but could not controvert the arguments of the learned counsel and could not state with certainty whether the provisions of section 103, Cr.P.C. Were properly complied with at the time of recovery of the robbed articles.
8. ' I have examined the bail application in the light of the arguments of the learned counsel and have perused the records of the case including the F.I.R., the order refusing bail and the judgments relied on by the learned counsel for the applicant. The judgments relied on by the learned counsel for the applicant fully support his contention that where accused has not been nominated in the F.I.R. Then non-holding of identification parade after the arrest of accused person brings his case within the purview of section 497(2), Cr.P.C. It has also been held in the case of Allah Wasaya, quoted supra, that the holding of test identification parade could not be dispensed with simply for the reason that the accused has subsequently been found in possession of robbed goods and further inquiry is also needed to determine whether the provisions of section 103, Cr.P.C. Were fully complied with by the Investigating Officer in it's letter and spirit. I respectfully subscribe to the above two judgments.
9. ' For the foregoing reasons, I am of the view that the applicant is entitled to bail and, therefore, vide my short order passed in Court after hearing the learned counsel on 12-6-2007 I had admitted the applicant to bail on furnishing solvent surety in the sum of Rs, 1,00,000 and P.R bond in the like amount to the satisfaction of the trial Court.
10. ' This bail application is disposed of in the above manner.