1. ' MAQBOOL AHMED AWAN, J.-- The applicant who is facing trial in the Court of learned II-Additional Sessions Judge, Karachi (W), applied for grant of bail in Crime No,21/2009 of P.S. SITE, for offence under section 395, P.P.C.
2. ' Precisely, the case of prosecution as narrated in F.I.R. By the complainant Farman Saeed is that he was serving as a Manager in Godown situated on Plot No,F-266, SITE. The owner of the Godown has appointed a watchman namely Hafiz Abdullah at Godown, Haji Sheena also served as Chowkidar in the night time.
3. ' On 9-3-2009 at 7-00 a.m, in the morning, Chowkidar Hafiz Abdullah informed the complainants on Telephone that in the last night, dacoits entered in the Godown and on the show of weapons took away beam plates by loading in a Mazda No, JY-1595. On receipt of such information at 8.00 a.m., the complainant reached at the spot, where both the security guards informed him that at 12-30 a.m. In the night, they were sitting in the Godown after closing its gates, suddenly they saw four persons by scaling the wall entered inside the Godown, they on the point of weapon tied their hands and legs and confined them in room situated near the gate of Godown. The culprits brought Mazda mentioned above and loaded beam plates and one fan of Godown. The said Chowkidar and watchman further informed the complainant that the culprits also robbed them of cash and mobile phones. At about 2-30 a.m., the culprits left the Godown with Mazda. The said Chowkidars further informed the complainant that they had seen the accused, who were wearing Shalwar and Kameez and would identify them on seeing again. On receipt of such information, complainant proceeded towards Godown and found 26 silver beam plates and one fan missing and have been robbed by the culprits. Thereafter, the complainant came at the Police Station for report, where he saw the Mazda number mentioned above loaded with beam plates and one Fan was standing there. On inquiry, it was disclosed to the complainant that Mohammad Fayyaz was the driver of the truck, whereas his companion has been killed in an encounter with police. The complainant alleged that his complaint is against accused Mohammad Fayyaz and Amanullah (who was killed in encounter), and their other 7/8 accomplices, who were seen by the watchman and would identify them on seeing again.
4. ' The police took up the investigation and after completing the same submitted the challan as stated above.
5. ' Mirza Sarfraz Ahmad, learned counsel for the applicant has argued that the applicant is innocent and has been falsely involved by the police; that the complainant had not seen the incident and his evidence is of hearsay nature; that nothing has been recovered from the applicant except the weapon, which has been foisted by the police upon the applicant; that no identification was arranged by the police of the applicant through Hafiz Abdullah and other watchman, who had claimed to identify the culprits on seeing again; that the incident is not taken place in a manner as claimed by the prosecution; that the story advanced by the complainant appears to be unnatural, unbelievable and cooked afterthought inasmuch as that the said Hafiz Abdullah did not inform the complainant for about four hours, when the culprits were present inside the Godown and were committing the robbery; that the punishment of the offence would not fall within the prohibitory clause of section 497 Cr.P.C. He relied upon the case of Liaquat Ali v, The State reported in 2009 PCr.LJ 413, Mohammad Arshad and others v. The State reported in 2008 M LD 1079, Shehzore and another v. The State reported in 2006 YLR 3167, Muneer Ahmed v. The State 2003 PCr.LJ 758, Ali Hassan v. The State reported in 2005 YLR 3211, Sarfraz v. The State reported in 2009 YLR 984 and Abdul Sattar v. The State 2008 M LD 679 and prayed for grant of bail on the ground of further enquiry.
6. ' Mr. Muhammad Iqbal Awan, the Assistant Prosecutor-General vehemently opposed the grant of bail and submits that the applicant was apprehended at the spot by the police along with T.T.
7. Pistol; that the punishment for the offence would fall within the prohibitory clause of section 497 Cr.P.C., he therefore, submits that applicant is not entitled for grant of bail.
8. I have heard the learned counsel for the parties and perused the material available on the record.
9. From the perusal of material; it appears that the complainant had not seen the incident, that the applicant was not arrested by the police from the spot/the place of incident as stated by the complainant; that police had shown the accused to the complainant party; that no identification parade of the applicant was arranged by the police through said Hafiz Abdullah and another Chowkidar; that the story of arresting the applicant and subsequently showing to the complainant party, requires serious consideration at the time of trial. It is also yet to be seen that under provisions of 395, P.P.C., alternate punishment i.e, imprisonment for life or imprisonment for not less than four years and more than ten years have been provided. It is well settled that lesser sentence should be considered by the Court in the matter of bail as has been held in the case of Shahzore supra. Since the challan has been submitted and I have been informed that the two co-accused involved in the case have been granted bail by the learned Trial Court.
10. ' From the above discussion, I have come to the conclusion that the applicant has made out the case for grant of bail. Resultantly, I allow this application and A direct that applicant shall be released on bail on his furnishing one surety in the sum of Rs, 200,000 (Two Lacs) and P.R. Bond of the like amount to the satisfaction of the learned Trial Court.