1. ' AQEEL AHMED ABBASI, J.--- Being aggrieved and dissatisfied with the order dated 11-12-2009 passed by learned Vth Additional Sessions Judge, Hyderabad in Sessions Case No,962 of 2009 whereby the bail plea of the present applicants was declined, hence they have moved the instant bail application under section 497, Cr.P.C.
2. ' The brief facts relevant in the instant bail application are that complainant namely Abdul Shakoor son of Abdul Salam Memon registered the F.I.R. i,e, Crime No,293 of 2009 at Police Station Tando Muhammad Khan on 23-10-2009 at 1750 hours, alleging the offence under sections 459, 392, 34, P.P.C. Having taken place on the same date at about 0330 hours. The allegations contained in the F.I.R. Are reproduced hereunder for the sake of brevity and relevancy:--- "On 17-10-2009 at about 3-00 a.m. In the night time, three accused persons entered into the house of the complainant and on the pointation of weapons, robbed cash of Rs,37,000, gold ornaments and clothes. It is alleged that culprits were identified by the complainant party. It is further alleged in the F.I.R. That on the resistance of complainant party, the accused fired from pistols with the result, father of complainant namely Abdul Salam sustained in all 18 injuries and P.W. Ashique received one injury."
3. ' The investigation was made, accused persons including the present applicants were arrested on 29-10-2009, one of accused namely Jamoo was shown as absconder and Challan was submitted in the Court of Judicial Magistrate-II, Hyderabad.
4. ' It is inter alia contended by learned counsel for the applicants in the F.I.R., the date of alleged offence is mentioned as 17-10-2009 at about 0320 hours whereas F.I.R. Has been lodged on 23-10- 2009 at about 1750 hours by the complainant after delay of about six days which is not explained.
5. According to learned counsel, the present applicants have not been nominated in the F.I.R., no role has been assigned to them nor any recovery of the alleged stolen articles or any weapon has been effected. It is further submitted that no identification parade has been made in respect of the present applicants and even the statement of complainant has been recorded on 24-10-2009.
6. Learned counsel states that even the complainant had filed affidavit of no objection on the bail application filed by the present applicants before learned Vth Additional Sessions Judge, Hyderabad but the learned trial Judge without considering the merits and taken into consideration the affidavit of no objection filed by the complainant, dismissed the bail application of the applicants. It is further contended that there is nothing on record to show involvement of the present applicants in the alleged crime nor there is any incriminating evidence against the applicants in this regard. He states that the prosecution story besides being false, is doubtful and requires further inquiry. The applicants are behind the bars since the date of their arrest, therefore, entitled to the concession of bail. In support of his contentions, the learned counsel has placed reliance on the following cases:---
(1) Shammon alias Samandar v. The State 2007 M LD 294, (2) Ali Gul v. The State 2007 PCr.LJ 1907, (3)
7. Badaruddin and 2 others v. The State 2007 PCr.LJ 502, (4) Faisal Khan v. The State 2007 YLR 2613.
8. ' Conversely, the learned A.P.-G. In view of the facts and circumstances of the case and no objection by the complainant Abdul Salam who is also present in Court, does not oppose the grant of bail.
9. I have heard both the learned counsel as well as the complainant present in Court. On bare perusal of the contents of F.I.R. As well as material available with the prosecution, it appears that the present applicants have made out a prima facie case for grant of bail as neither any direct role has been assigned nor identification parade has been made. Moreover, no recovery has been effected and there is also delay of about six days in lodging of the instant crime. Complainant himself has also sworn affidavit of no objection. Under the circumstances, the case of prosecution cannot be termed as free from doubts hence requires further inquiry. In view of hereinabove facts and the case-law relied upon by learned counsel for the applicants, the applicants vide short order dated 2-4-2010 were admitted to bail subject to furnishing surety in the sum of Rs,50,000 each with P.R. Bonds in the like amount to the satisfaction of the trial Court with direction that if the applicants/accused misuse the concession of bail, the trial Court shall be at liberty to initiate the proceedings for cancelling the bail of the applicants according to law. These are the reasons for such short order. Before parting with this order, it is clarified that the observations made hereinabove are tentative in nature and the trial Court shall not be influenced by any such observation and shall decide the case on merits and on the basis of evidence available on record.##TE#