' AQEEL AHMED ABBASI, J.---Being aggrieved and dissatisfied with the order dated 7-8-2009 passed by learned VIth Additional District Judge (South) Karachi, whereby the bail was refused to all the three accused persons including the present two applicants by single order, hence the instant bail application for both the applicants has been filed under section 497, Cr.P.C.
2. Brief facts leading to instant bail application are that an F.I.R. No,84 of 2009 under section 392/34, P.P.C. Was registered at Police Station Gizri District South on 23-2-2009 at 1300 hours on the complaint of Chaudhry Abdul Waheed. The contents of F.I.R. Are reproduced hereunder:-- "The statement under section 154, Cr.P.C. Recorded as under:-- ' That brief facts of the case narrated in the F.I.R. That the complainant orally stated I the complainant has been residing with my family members in my own house since long. I proceeded to my office as usual. My wife phoned me in the office, that dacoity has been occurred at our home, I immediately called police help line "15" and rushed to my home as soon as I reached home, the police party was present with S.H.O. Concerned Gizri Police Station, my wife told the police that 3 months ago we got white washed our entire house by the Salam Bangali named person, the Salam Bangali belled out of my house and said that I came here to white wash/polish remaining of Drawing Room of the Sahib, then my wife on enter come and opened the gate and he entered in along with 3 other persons and request for water of drinking, whenever I give him water jug and glass and opened the door then he suddenly took a pistol and ordered to me don't make any voice, otherwise I killed you, during this and 3 other persons came and two of them have a pistol and one of them in his hand a Chhuri, and thereafter my wife and mother-in-law and one female servant at that time was present and all of them they put on solution tap around the mouth and also hands of them tied and sit in the T.V. Lounge, one of them along with arm be standing and two of them Salam Bangali and one person long hairs both had gone up and search our home and in the room of Almari they broken the Almari and get Rs.3,70,000 of Pakistani Currency and inami Bonds (different kind of) about Rs.39,000 and Foreign Currency i,e, U.S. Dollar, Thrum and Rial which is about Rs.90,000 Pakistani and Golden Ornaments (different kind of weight) at about 8 tolas and two wrist watches (Male) at about Rs.3,00,000 and one Camera and other small kind of articles, all these articles brought in T.V. Lounge and also took away of my wife hands bangles at that time wearing four bangles weight of 8 tolas and also ear-ring and also 3 golden finger rings (Female), they are took off and told for my wife take oath of your child you all not made out any voices and also not disclosed my name then I forgive you otherwise I killed you. And after taking of oath and then he down in the room and he detained 3 women in the room and also instructions in Bangali language you stand out side the window and if they made voices then you shoot them, and out side the house in the street one vehicle was standing and they are run away on the said vehicle and my wife and family members identified him when they appeared before him, my case and claim against Salam Bangali and his 3 companion against them for entering in my house and with arms they robbed golden ornaments and cash amount this is my report. Take action against according to law."
3. Challan was submitted in the Court of VIth Additional Sessions Judge (South) Karachi on 23-5- 2009, wherein six accused persons including the present applicants namely, Muhammad Salam and Muhammad Asif have been shown as arrested.
4. It is inter alia contended by the learned counsel for the applicants that the offence does not fall within the prohibitory clause under section 497(2), Cr.P.C. No recovery of the alleged robbed articles has been made and the applicants/accused persons are behind the bars for more than one year. It is further argued that the applicant/accused namely Muhammad Asif has not been nominated in the F.I.R. Nor any role has been assigned. Moreover, in the challan the Investigating Officer himself has mentioned that presence of Muhammad Asif at the place of incident is not proved nor any witness against him has come forward. According to learned counsel, since the proceedings under section 169, Cr.P.C. Have not yet been filed by the police the applicant is behind the bars without any legal justification. Learned counsel prayed that the present applicants/accused may be enlarged on bail.
5.Conversely, learned Additional Prosecutor General has seriously opposed grant of bail to the applicant/accused namely Muhammad Salam son of Abdul Razzaq, whereas bail to the applicant/accused namely Muhammad Asif son of Altaf Khan was not opposed. It has been contended by the learned Additional Prosecutor General that the applicant/accused namely, Muhammad Salam, who was the servant of the complainant has committed armed robbery by putting the complainant's family on threat to life and deprived them of their valuable belongings amounting to millions of rupees. He further stated that the applicant/accused namely, Muhammad Salam (Bangali) was duly identified by the family members of the complainant at the time of robbery and has also been identified in the identification parade. Learned Additional Prosecutor General states that applicant/accused is nominated in the F.I.R. And direct role as main culprit has been assigned. He has been duly identified by the eye-witnesses. There is no delay in lodging of F.I.R. And further the applicant/accused is also wanted in similar offences mentioned in the challan, hence he is not entitled for any discre tionary relief by this Court.
6. Learned Additional Prosecutor General also referred to the challan to show that the applicant/accused namely, Muhammad Salam son of Muhammad Razzaq is also wanted in crime cases Nos.65 and 67 of 2004 under sections 353, 324/34, P.P.C. And 13-D Arms Ordinance at Police Station Liquatabad. It appears that in the identification parade the applicant/accused namely, Muhammad Salam was identified by two eye-witnesses namely Mst. Sharifa Bibi and Mst. Bilqees Khanum.
6. Son of the complainant namely Sher Muhammad, who was also present in Court on Court notice has vehemently opposed the bail application of applicant/accused namely Muhammad Salam (Bangali) on the similar grounds raised by the learned Additional Prosecutor General.
7. I have heard both the learned counsel as well as son of the complainant and perused the record.
As per contents of F.I.R. The applicant/accused namely, Muhammad Salam (Bangali) son of Muhammad Razzaq, who was earlier the servant of the complainant's family committed an armed robbery along with other co-accused persons and deprived the complainant and his family of their valuable articles amounting to millions of rupees. After his arrest recovery of looted articles has also been made on the pointation of the applicant/accused namely Muhammad Salam (Bangali). On identification parade held on 25-4-2009, he has been identified by P. Ws. Mst. Bilqees Bibi and Mst. Sharifa with specific role. On tentative assesssment prima facie the applicant/accused namely, Muhammad Salam (Bangali) appears to be connected in the instant crime, trial is under progress, therefore, in my opinion is not entitled to any discretionary relief at this stage. Under the circumstances, the bail application of the applicant/accused namely, Muhammad Salam (Bangali) son of Muhammad Razzaq was rejected vide short order dated 25-1- 2010 and above are the reasons for such order.
6. As far as the bail application of applicant/accused Muhammad Asif son of Altaf Khan is concerned it appears that he is not nominated in the F.I.R. Nor any role has been assigned to him.
Similarly, in the challan also the Investigating Officer after inquiry has absolved him from all charges in the instant case. In the identification parade also he has not B been identified by the prosecution witnesses. It appears that his name was included in the challan by the earlier Investigating Officer, whereafter nothing seems to have been brought against the said, applicant/accused during the trial so far.
7. Under the above circumstances, bail is granted to the applicant/accused namely, Muhammad Asif son of Altaf Khan subject to furnishing solvent surety in the sum of Rs.50,000 (Rupees Fifty Thousand) and P.R. Bond in the like amount to the satisfaction of the trial Court.
11. The trial Court is directed to examine the role and possibility of conviction of applicant/accused namely, Muhammad Asif son of Altaf Khan in the instant case and if it is found that there is no such possibility of his being convicted in the alleged crime the orders may be passed for his release/acquittal immediately.
12. Needless to mention that the observations made hereto in respect of both the applicants are tentative in nature and the trial Court shall not be prejudiced by any such observations and shall decide the case strictly on merits and ou the basis of evidence available on record.