' SALMAN TALIBUDDIN, J. This matter was fixed before me on 22-6-2009 for orders on M.A. No,451 of 2009 dated 20-2-2009 (seeking an urgent hearing of the main application on 4-3-2009) and M.A.
No,452 of 2009 (seeking exemption from the requirement of filing a true translation of the challan), and for hearing the main application under section 497, Cr.P.C. Dismissing M.A. 451 of 2009 as having become infructuous and allowing M.A. 452 of 2009, the main application under section 497, Cr.P.C. Was heard on 22-6-2009 and orders thereon were reserved.
2. By this application under section 497, Cr.P.C. It is prayed that the applicants namely Muhammad Mithal son of Piral, Umed Ali son of Muhammad Ramzan and Hussain son of All Haider be admitted to bail in Crime No,167 of 2008, Police Station B-Section Latifabad, under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979.
3. The narration of facts set out in this and in the following paragraph 4 is based on the English translation of the F.I.R. Attached to the bail application. The complainant in this case is Fareed Ahmed son of Waheed Ahmed, R/o Unit No,6 Latifabad, Hyderabad. According to him, on 17-9-2008 he was sleeping with his family members at home when, at around 4-00 a.m. He was awakened by someone. Upon waking up he saw three persons standing in his room, one of whom was holding his minor son aged about 4 1/2 years with a pistol aimed to his head. On their threats the complainant opened the door of the Almirah and handed over cash, prize bonds and watches to them. After packing these items, the accused persons led the complainant to the room of his son Muneer Ahmed from where they took three mobile sets and Rs,50000 cash. From there they led the complainant to the room of his other son Danial from where they took two mobile sets. Danial woke up as a result of the disturbance and the accused also aimed a pistol at him. They searched other rooms in the house but did not find anything of their interest. In all, the accused deprived the complainant and his family of the following items:--
(1) 27 Bonds of the value of Rs,40000
(2) 10 thousand Japanese Yen
(3) 900 US Dollars
(4) Cash Rs,48000
(5) Four watches of different brands.
(6) Three TC (MCB) bank.
(7) Two or three golden lockets.
(8) One gold set
(9) 11 golden rings
(10) Three gold sets
(11) Two gold bangles
(12) Five mobile phones of different brands.
(13) Cash Rs,50000
4. The accused packed all these articles in three bundles and, while returning his minor son, threatened the complainant and his order that they will kill the complainant party if any complaint was lodged against them. At this time one of the accused persons received a telephone call after which they went away with the robbed articles. Subsequently, upon receiving information that certain dacoits had been arrested and were under confinement at the A section police station, the complainant and his two sons went to the police station and recognized three of them as the same persons who had committed the robbery in their house. Later on, the accused were also identified by the complainant and his sons while they were being brought by the police to Court in a mobile.
The F.I.R. Was lodged on 16-10-2008.
5. In support of this application learned counsel for the applicants has submitted that F.I.R. Was lodged after about 27 days of the alleged incident and no recovery has been made from the accused persons. Learned counsel also submitted that the accused were identified by the complainant and his sons while they were in custody at the police station in connection with some other crime and the identification is suspected in view of the fact that the F.I.R. Did not disclose the description of any of the accused persons nor did it specify whether their faces were covered or not. Learned counsel has further submitted that the challan has been filed and the accused persons are not required for further investigation by the police.
6. In support of his contention that the applicants are entitled to bail in the circumstances of this case learned counsel has relied upon the following cases involving the application, inter alia of 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979; Barkat Ali v. The State 2006 M LD 431, Abdul Hameed Soomro v. The State 2004 M LD 413, Moula Bux v. The State 2003 PCr.LJ 394 and Ahmed Nawaz v. The State 2007 YLR 2101.
7. In Barkat Ali's case the Court was pleased to grant bail in circumstances where no recovery had been made from the accused and he was already under custody in another case in the same police station when identified by the complainant. This fact raised the possibility that the accused might have been shown to the complainant by the police at the police station prior to holding the identification parade creating a doubt, the benefit of which was extended to the accused.
8. According to the F.I.R. In Abdul Hameed Soomro's case give unknown persons snatched a pick- up from the complainant on the show of force. However, in the F.I.R. The complainant stated that he would be in a position to identify the accused if he were to see them again. While the present accused were arrested on 8-5-2003, it was not until 17-5-2003 that the identification took place.
The Court found that this fact rendered the case one of further inquiry entitling the accused to the concession of bail, which was granted.
9. The facts of the prosecution case as per the F.I.R. In Moula Bux's case were that on 18-11-2001 the complainant was woken up by a noise at around 100 hours and saw four persons in his courtyard.
Three of them were armed with guns and the fourth with an iron rod. After physically assaulting the complainant and his wife and issuing threats to the other inmates of the house, the four persons deprived the complainant of a double-barrel gun, gold ornaments, clothes and other items and escaped. The three persons armed with guns were identified in the I I.R. And included the applicant Moula Bux: The complainant was unable to name the fourth person but stated that he could be identified if seen again. The F.I.R. Was registered after a delay of about 43 days during which period the complainant states he approached the accused for return of the robbed property who kept him on false promises. According to the complainant the F.I.R. Was lodged when the accused ultimately refused to return his property. In these circumstances the Court granted bail to the applicants holding as follows:--- ' Admittedly the F.I.R. Was registered after the delay of 43 days though the delay in registering the F.I.R. Has been explained even otherwise delay per se in registration of F.I.R. Cannot be a ground to make the case doubtful if there are other incriminating pieces of evidence against the accused.
The present applicants/accused were arrested on 14-2-2002 and the case has been challaned.
Nothing has been recovered from the applicants/accused and there is no incriminating piece of evidence to connect the applicants/accused with the Commission of crime except that they have been nominated in the F.I.R. The nomination in the F.I.R. Which is inordinately delayed has thus rendered the case against the present applicants/ accused of further inquiry. In view of the case law relied upon by the learned counsel for the applicants/ accused the applicants/accused are entitled to the grant of bail.
10. In Ahmed Nawaz's case the complainant had allegedly been robbed on gun point of his valuables by one Gulberg Buriro and two unknown persons on 21-3-2006. The incident allegedly took place in the presence of the complainant's brother-in-law Jahangir and Abdul Karim and the F.I.R. Was lodged on the same date. Four days later, on 25-3-2006, Jahangir and Abdul Karim made a statement before the police that they had also identified Ahmed Nawaz at the time of the incident. Ahmed Nawaz was arrested on the basis of this statement but no weapon or stolen property was recovered from him. The Court found that the fact that Jahangir and Abdul Karim, who were with the complainant at the time of the incident, did not claim at that time that they had identified Ahmed Nawaz and had made such a statement after the lapse of 4 days militates against the reasonableness of the ground put forward for believing Ahmed Nawaz guilty of the offence entitling him to bail on the ground that this was a case of further inquiry.
11. Learned counsel for the State opposed the bail application on the ground that the delay in lodging the F.I.R. Does not become an automatic ground for granting bail in every case. He further submitted that in this particular case the delay was explained by the threat of dire consequences if a complaint was lodged against the accused. Learned counsel for the State also submitted that the accused persons had been identified by the complainant Fareed Ahmed as well as his two sons none of whom have any reason to falsely implicate the accused in this case.
12. I have carefully considered the submissions of learned counsel and have also examined the record on file. While I appreciate that a delay in lodging on F.I.R. Can constitute grounds for grant of bail in circumstances where there is some reason, for example an existing enmity between the parties, to believe that the implication may be motivated, I note that none exists in this case. This is a case where the complainant and his family were robbed by three unknown persons one of whom was holding a gun to the complainant's minor son at all times during the commission of the offence. To my mind the delay in lodging an F.I.R. Against unknown persons is sufficiently explained by the fact that the complainant had already undergone the trauma of being A robbed by persons holding a gun to his minor son and had received threats of fatal retaliatory against the complainant and his family if a complaint was registered by him. Keeping in view the nature of the robbed property which can easily be converted into cash, the fact that no recovery was made from the accused is also, not a ground that would render this is a case of further inquiry.
13. I am also not impressed by learned counsel's submission that their subsequent identification at the police station renders this a case of further inquiry entitling them to the grant of bail. In this case it appears that the complainant was informed that certain Dacoits had been apprehended and were confined at the police station and was asked to see if any of them was the person(s) who committed the robbery at his house. As held by the Honourable Supreme Court in Dr. Javed Akhtar v. The State, PLD 2007 SC 249, an identification parade is not a legal requirement and it is enough for conviction if an eye witness identifies the accused before the trial Court. In this case the Honourable Supreme Court was impressed with the fact that the complainant as well as the prosecution witnesses had no enmity with the accused to involve them in a criminal case and that the complainant was an educated lady who would not exonerate the real culprit by nominating innocent persons just at the behest of the police.
14. In view of the foregoing, I find that the accused have failed to make out a case entitling them to the grant of bail and hereby dismiss this Criminal Bail Application No,89 of 2009. Needless to say, at this stage the findings above are per force only tentative and will not have a bearing on the merits or demerits of either parties'case before the trial Court.