1. 'MUHAMMAD TASNIM, J.---The applicant has impugned the order dated 28-1-2010 passed by 1- Additional Sessions Judge, Malir-Karachi, in Sessions Case No,71 of 2010 arising out of F.I.R. No,17 of 2010, registered under section 392/34, P.P.C. At Police Station Shah Latif Town whereby the bail application of the applicant/accused was dismissed.
2. 'The brief facts as setout in the F.I.R. By the complainant Muhammad Mustafa are as under:-- 'The brief facts as setout in the F.I.R. By complainant Muhammad Mustafa are that he along with his family residing at House No,19-B, Gulistan Society, Quaidabad, Bin Qasim Town, Karachi. On 7-1- 2010 he went to Jurria Bazar where he is doing business. He received phone call of his wife informing him about robbery. He went home and on enquiry his wife told that at about 12-30 p.m.
3. Someone knocked the door when she asked that who is there some one disclosed that I am Khalil and to give you sweet of my brother Yasir's engagement and then she opened the door two person forcibly entered into the house along with Khalil. Out of whom one person snatched his wife's golden chain, bangle, one pair of tops on gun point, after that my wife, house servant, namely, Masi Hawa and our neighbour Bibi Yasmeen were put into the room and one person along with pistol was standing upon them and another picked up the phone Nokia 7300 along with SIM No,0322- 2112247 from table and nothing was recovered from servant Masi Hawa, ten rupees were recovered from the perse of Yasmeen and taken at about Rs,700 from my wife's purse with MP4 video game and thereafter by saying stay in the room and ran away. Complainant further stated that Khalid s/o Lal Muhammad along with his family was our tenant five years back and still residing at Gulistan Society. The complainant also stated that the children of vicinity saw three accused at the time of running away from my home. In the F.I.R. Complainant further stated that Khalil's mother came at our home and said that I have come to know that my son Khalil has committed robbery at your home and said at the moment my son is not present at home when he would come back I would produce him at your home. The complainant further stated that Khalil's brother Yasir also phone him and said sorry about robbery and stated that my brother Khalil is not present at home whenever he would come I would produce him at your home. The complainant has also stated in the F.I.R. That at about 11-00 p.m. Yasir and his mother came along with Khalil at my home and when I asked Khalil about the incident he told me he, his friends Abdullah s/o Saeed Ahmed, Shakir s/o not known to him have committed robbery and told that he will bring his friend at my house.
4. The complainant further stated that Khalil informed him that Shakir was armed with pistol and snatched articles viz. Golden ornaments, mobile phone of my wife Shazia, MP4 video came are in possession of Abdullah and Shakir. I asked Khalil and was sorry on his act of robbery and wants that I may forgive him.
5. 'It is, inter alia, argued by the learned counsel for the applicant that name of applicant/accused does appear in the F.I.R. He further argued that no recovery of any firearm was made from the applicant/accused. Learned counsel further submits that no role was assigned to the present applicant by the only witness Mst. Shazia who had assigned role to other accused persons but no role was assigned to the present applicant. Learned counsel further submitted that there was twelve hours delay in lodging of F.I.R. He further argued that no article of alleged jewelry was recovered from the present applicant/ accused.
6. 'Learned counsel for the applicant while developing his further argument submitted that as many as four witnesses have recorded their statements under section 161, Cr.P.C. But none of them has seen the incident except Mst. Shazia but she does not connect the present applicant with the commission of crime. Learned counsel for the applicant in support of his above submissions has relied upon the cases of (1) Asif Raza v. The State 2006 PCr.LJ 1628, (2) Wasim Riaz v. The State 2004 PCr.LJ 668, (3) Nazeer Hussain v. The State 2007 PCr.LJ 946 and (4) Abdul Sattar v. The State 2008 M LD 679.
7. 'As against the above learned APG has vehemently argued that presence of applicant/accused has been made out by Mst. Shazia in her 161, Cr.P.C. Statement. He further submitted that the present applicant was the tool and acted as corroborator with other two co-accused who gave knock to the house of Mst. Shazia. The learned APG further submitted that since the applicant was previous tenant of Mst. Shazia she opened the door to receive the sweet which allegedly present applicant had brought to hand over to Mst. Shazia. Learned APG further stated that the applicant acted in connivance with other armed person who committed the crime, hence applicant is connected with the commission of offence and is not entitled for bail.
8. 'I have heard the learned counsel for the parties and have perused the record available before me as also the case-law cited by the learned counsel for the applicant.
9. When learned APG was asked to point any piece of evidence from the statement of Mst. Shazia which connects the applicant with the commission of offence the learned APG has frankly stated that there is no evidence whatsoever either of Mst. Shazia or of other witnesses whose statements under section 161, Cr.P.C. Had been recorded which connects the applicant with the commission of crime.
10. 'Now taking up the first arguments of learned counsel for the applicant that name of applicant does find place in F.I.R. Is correct. It is admitted on record that no recovery of any arm was effected from the present applicant/accused. It is . Also admitted on record that delay of twelve hours in lodging of F.I.R. And the explanation put forth by the prosecution is not tenable. It is also admitted on record that no article was recovered from the present applicant. The cases cited by the learned counsel for the applicant support the case of applicant/accused.
11. 'With regard to the contention of learned APG it is stated that he has frankly conceded that there is no evidence whatsoever which connects the present applicant/accused with the commission of offence. Learned APG further admitted before me that there is no other evidence except that of Mst.
12. Shazia which according to learned APG involves the present applicant/accused.
13. 'From the examination of the above it is clear that neither any recovery was made nor any role was assigned to the present applicant/accused nor any recovery of robbed property was made from the present applicant/accused, hence prima facie a case of further enquiry has been made out.
14. Accordingly, the applicant/ accused is admitted to bail on his furnishing surety in the sum of Rs,100,000.00 (Rupees one hundred thousand) with P.R. Bond in the like amount to the satisfaction of learned trial Court.
15. ' The observations made in this order are tentative in nature and shall not effect the trial of the accused.