1. ' SYED MAHMOOD ALAM RIZVI, J.---The applicant has impugned the order dated 28-4-2008 passed in Criminal Bail Application No,656 of 2007 offshoot of Crime No,306 of 2007 under section 392/34, P.P:C. By the learned Vth Additional Sessions Judge, Karachi South whereby the bail application of the applicant was turned down.
2. ' Briefly, the facts of the case are that on 5-11-2007 at 6-00 p.m. The accused/ applicant is said to have been arrested when he tried to rob two persons namely Babar and Hameed. It is, alleged, the co-accused Zahid escaped from the spot with the looted articles but the accused/applicant was arrested at the spot and the accused was brought at Police Station Mahmoodabad, Karachi.
3. Charge has been framed and one of the eye-witnesses Babar has been examined and in his examination-in-chief he supported the prosecution story. However, he deposed that due to darkness he could not identify the accused persons.
4. ' Ms. Noor Naz Agha, learned counsel for the applicant contended that as per F.I.R., 161, Cr.P.C.
5. Statement of the prosecution witnesses and the deposition of P.W. Babar, it was crystal clear that when the accused was said to have been produced before the police, nothing was in his possession. The alleged pistol has been foisted upon the accused. It is, a fact of great significance that the accused/applicant is an M.B.B.S. Doctor and has filed his Certificate and Degree coupled with the transfer order dated 22-8-2007 whereby he was relieved from Chandka Medical Hospital, Larkana and transferred to Civil Hospital, Karachi. She further contended that the accused/applicant is doing house job in the Civil Hospital, Karachi. She further contended that the complainant is a hearsay witness as he was not present at the spot and subsequently, lodged the F.I.R. She further contended that there is no likelihood even of conviction of the accused/applicant as the circumstances clearly spell out that he is innocent and has been falsely implicated and even the main witness has exonerated him in the Court. She further contended that no person from the locality has been cited as a witness which was a clear violation of section 103, Cr.P.C. She relied upon the following judgments:--
(i) Muhammad Asif Mumtaz v. The State 1999 PCr.LJ 283 (Karachi);
(ii) Ghulam Akbar v. The State 2004 PCr.LJ 271 (Lahore);
(iii) Khair Muhammad v. The State 2005 MLD 572;
(iv) Atta Hussain and another v. The State PLD 2002 Karachi 113;
(v) Allah Diwaya v. The State 2001 PCr.LJ 948 (Karachi);
(vi) Khalid Hussain v. Raja Kala Khan and 2 others 2004 PCr.LJ 1080 (SC AJ&K);
(vii) Faisal Muhammad Hassan and 2 others v. The State 2004 PCr.LJ 266 (Peshawar) and (viii)Darya Khan v. The State 2004 YLR 201 (Karachi).
6. ' The abovesaid judgments are on the point that either the offence does not fall under the prohibitory clause of section 497, Cr.P.C. Or nothing was recovered from the possession of the accused, or there was violation of the provisions of section 103, Cr.P.C. Besides, certain cases were under section 13(d) Arms Ordinance, while the case reported in, Khalid Hussain v. Raja Kala Khan and 2 others 2004 PCr.LJ 1080, was under sections 302/201/109/34, P.P.C. In which bail was granted by the High Court which was sought to be cancelled before the Supreme Court and the guidelines and principles have been mentioned as to how the bail matter of an accused involved in a non- bailable offence should be decided, while in the case of Faisal Muhammad Hassan and 2 others (supra) bail was granted in a case of cheating and fraud.
7. ' On the other hand, Mr. Asadullah Baloch, learned State counsel opposed the grant of bail to the applicant/accused on the ground that the accused was arrested on the spot and the pistol was recovered from his possession and no mala fide or ulterior motive has been shown against the prosecution.
8. ' Heard, the arguments advanced by the learned counsel for the parties and perused the record and the judgments cited by the learned counsel for the applicant.
9. ' It is, a case of robbery, in which after scuffle one person was arrested, and what is the most painful aspect of the matter is that a highly educated person was involved in the commission of street crimes. In the case in hand the applicant is an M.B.B.S. Doctor and was arrested on the spot by the police. Although it is claimed that he has been falsely implicated in the case but, neither the Officials of Civil Hospital ever stood up for his redressal, nor any protest was made by his colleagues as to his being involved in a false case. Though one witness, namely P.W. Babar exonerated the accused/applicant in the Court by saying that due to darkness he could not identify the accused/applicant and keeping in view the argument of the learned Defence Counsel that in Karachi at 6-00 p.m. On the date of the incident there is no darkness clearly spells out that the said prosecution witness for one reason or the other was compelled to exonerate the applicant by deposing that there was darkness at the time. In Karachi either people use to avoid lodging the F.I.R's. or if a case was registered, avoid to appear in Court, or only appearing after having been served with bailable or non-bailable warrants issued by the Court for securing presence of the witnesses in Court. They would also give such statement which though supportive of the prosecution case, however, but exonerate the accused persons from the commission of the alleged offence, e.g. Either at the time of incident the accused was wearing a helmet, or that it was dark at the time or that the witness was unconscious. Almost the same position was evidenced in Criminal Bail. Application No,568 of 2008 (Syed Ghazanfar Zaidi v. The State) which was dismissed by this Court vide order dated 13-6-2008. In the said case two persons were looted and the accused was arrested on the spot. They supported the prosecution case but tried to exonerate the accused person on the plea that the accused was wearing a helmet. Looking into the facts of the case and after going through the provisions of Article 129 of the Qanun-e-Shahadat Order, this Court dismissed the bail application. The fact and circumstances of the above-said case are almost the same as that of the instant case.
10. ' In the case of Muhammad Asif Mumtaz (supra) in which bail was granted by Mr. Justice Sabihuddin Ahmed in a case under section 392/34, P.P.C. In which the accused was arrested when he tried to slip away from the spot but his motorcycle had slipped and the police mobile moving around reached the spot and on the pointation of the complainant arrested the accused. Bail was granted as no private person was cited as a witness and nothing incriminating was recovered from his possession. With utter respect, I am not in agreement with the above judgment on two grounds;
(i) the above case was decided in June, 1988 when the street crimes were rare as compared to current scenario where almost 90% of citizens are being looted by criminals by snatching their purses and the mobiles etc. Everybody is scared to walk on the streets and cannot even talk on their mobile calls even near mosque, outside a wedding ceremony or even when they were taking meals in cafes or restaurants. Citizens also did not feel themselves safe and scared to use their mobiles around the High Court, or near signals which were main points of mobile snatchers and everybody finds himself in an unsafe and unsecure position and is frightened that at any moment he may be deprived of his valuables and even of his precious life. Furthermore, in the above said case, no pistol was recovered from the accused, but in the present case a pistol was recovered from the accused/applicant. So far as the contention of the learned counsel for the applicant, that at the time of registration of F.I.R., the applicant was not in possession of the pistol, suffice it to say that it is obvious that if a person is captured on the spot with the pistol, the pistol would be taken from his hands and obviously when the F.I.R. Would be registered, the same would not remain in his hand. In such circumstances, it cannot be said that the same was not recovered from his possession.
11. ' Keeping in view the facts of the present case, it is highly alarming that even highly educated persons are involved in street crimes. His case cannot be equated with the cases of those accused persons who B are jobless or illiterate or belonging to families having no means.
12. ' In view of the above, I am not inclined to grant bail to the accused/ applicant, hence the bail application is dismissed.
13. ' However, expeditious trial is the right of every accused, hence the trial Court is directed to conclude the case within a period of six months.
14. ' It is made clear that the observations made in this order are tentative in nature and the trial Court shall not be influenced by the said observations and shall decide the case on merits.