1. ' ABDUL RASHEED KALWAR, J.--This bail application has been moved on behalf of applicant Nazir Ahmed who has been booked in Crime No,716/2007 under section 395, P.P.C. Police Station Ferozabad, Karachi East.
2. ' The incident - took place on 17-9-2007 at 9-00 to 9-10 a.m. And the F.I.R. Was lodged on the same day at 11-45 a.m. Regarding the incident having taken place in U.B.L., Shaheed-e-Millat Road Branch, near Baloch Colony, Karachi. The F.I.R. States that the complainant Salahuddin Mughal was Operation Manager in U.B.L., Shaheed-e-Millat Road Branch, On the day of the incident he was on duty and was operating computer on the ground floor of the bank. Other staff was available on duty. Security Guard Ghulam Abbas son of Hussain Bakhsh Marri was available on gate with the weapon. Another Guard Talib Hussain was available on the side of cash counter. At about 9-00 a.m. The complainant was busy on telephone while speaking with someone at the Head Office, meanwhile two persons entered into the bank and immediately thereafter they were followed by two other persons. They snatched the weapon from the Guard Ghulam Abbas and took over control of the bank. One of the culprits took out the purse from the pocket of the complainant and asked him to keep his head down. The fifth culprit brought a black bag. All the staff was commanded by the culprits to sit down near the counter. Two employees of the bank namely, Ashraf and Shahzad Shamsi were brought downstairs from upper story and they were also made to sit along with other staff. Thereafter another person came in the bank and went at the upper storey and commanded other co-offenders in Sindhi language to go along with him. He also commanded the staff members to keep their heads down and also commanded not to put the siren on. Five persons left the bank first and sixth later on, left the bank and decamped in Cultus Car. After decamping of the culprits, they found that Rs,57,45,600 and VCR along with cassette were missing and the Repeater was also snatched. As per the complainant, the incident had taken place after hatching conspiracy. He has, however, claimed to identify the culprits if they were brought before him.
3. ' The applicant was arrested on 20-7-2008 by one Choudhry Abdul Salam of P.S. C.I.D Sindh before whom the present applicant had allegedly admitted the guilt. After correct pointation of the place of incident by the applicant, the police had arrested him in the present case. The applicant was already arrested by CID Police in Crime No,156/08 under sections 324/353/34, P.P.C. And Crime No,157/08 under section 13(d) Arms Ordinance.
4. ' On 5-8-2008 accused was put to identification test before the Court of VIIth Civil Judge & Judicial Magistrate, Karachi East where the complainant and cashier of the bank did not identify him whereas one guard Abbas had identified on 5-8-2008. The challan was presented before the Court on 8-8-2008.
5. ' The bail plea of the applicant was rejected by the learned Vth Additional Sessions Judge, Karachi East vide order dated 4-12-2008.
6. ' Learned counsel for the applicant has argued that name of applicant is not mentioned in the F.I.R; the admission of applicant as to guilt is hit by Article 38 of the Qanoon-e-Shahadat; identification test is of no value as the relevant rules have not been followed. It is further argued that two main witnesses i.e, complainant and the cashier have not identified the applicant and only Guard namely Abbas has identified him, as such due to this controversial situation, the identification becomes doubtful; no recovery has been made from the applicant; he is in jail since the date of his arrest i.e, 29-7-2008 and charge has not been framed as yet by the trial Court. She has relied upon 1997 M LD 1743; 1994 PCr.LJ 508 and 1982 SCM R 129.
7. ' Learned Additional Prosecutor-General Sindh has argued that offence is heinous one; huge ,amount of money has been robbed from the bank and the applicant belongs to the gang of criminals who are indulged in various crimes including bank robbery; the order of the lower Court is proper and based on correct appreciation of circumstances of the case and the applicant has been identified by one eye-witness.
8. ' Heard arguments of both the learned counsel and perused the record.
9. P.W. Ghulam Abbas has identified and picked up the accused in identification test. This piece of ocular testimony cannot be brushed aside at this moment. Other P.Ws. Were made to sit down below the counter with their heads down and due to such situation they may not be in a position to identify the applicant promptly like Ghulam Abbas. Deeper appreciation at bail stage is not permissible. The authenticity of B the identification shall be determined at trial.
10. ' The case-law cited by the learned counsel for the applicant i.e, In the case of Hameedullah Khan reported in 1997 M LD 1743 the applicant was granted bail in terms of the 3rd proviso of section 497 (1), Cr.P.C. Said 3rd proviso has been omitted in 2001 and as such same is not available on statute book. Hence such case-law is not applicable. In the case Hussain Bux reported in 1994, PCr.LJ 506 the identification parade held after 4 months of the incident and 10 days after the arrest of applicants made out the case one of further inquiry because it was observed by that Court that accused were already known to the applicant. In present case the applicant is not previously known to the P.W. Ghulam Abbas. To my humble view this case is also distinguishable from the present circumstances of the case as such not applicable. However, I am in agreement with dictum laid down this case-law in respect of principle of law that pendency of cases without conviction is no ground for withholding bail. The present applicant has not been refused bail on the ground that he is involved many cases. The applicant had pointed out the place of incident, therefore his admission will not be covered under Article 38 of the Qanun-e-Shahadat but the same shall be covered under Article 39 and 40 of the Qanun-e-Shahadat because it was only known to the applicant that where he had committed offence. The police could never know that applicant would point out the place of incident.
11. ' The third case-law is 1982 SCM R 129 is regarding the judgment after trial and the same does not have any bearing on the principles governed for the grant of bail because trial is based on evidence whereas, notice deciding bail plea deeper appreciation is not permissible.
12. ' One application to Deputy Director, Anti-Corruption Establishment had been moved by one Ahmed Ali, the brother of applicant, which shows that applicant was booked by one Ashiq Ali Khoso, A.S-I and he has levelled allegation of bribe against Ashiq Ali Khoso. At the bail stage, I do not see any bearing of this application over the outcome of this case.
13. In the circumstances, the bail plea of the applicant is rejected.