' AQEEL AHMED ABBASI, J.---Being aggrieved and dissatisfied with the two orders dated 4-11-2009 and 26-12-2009 passed by the learned 1st Additional Sessions Judge Karachi East in Sessions case No,1446 of 2009 in respect of F.I.R. No,503/2009 registered under section 395, P.P.C. At P.S. Shahrah- e-Faisal, Karachi East, the applicant has filed the instant bail application under section 497, Cr.P.C.
The contents of the F.I.R. Are reproduced hereunder for the sake of brevity and relevance.
"Vide report number in Daily Station Diary I, S.-I. Chaudhry Imtiaz Ahmed after recording the statement under section 154, Cr.P.C. From MCB Bank Gulshan-e-Jamal Branch, which reads that; from MCB Gulshan-e-Jamal Branch, dated 15-7-2009 at 1030 hours, stated by the complainant named above that I reside at the above given address and serving as Manager in MCB Bank Gulshan-e-Jamal Branch, Rashid Minhas Road, Karachi. Today 15-7-2009 I was present in bank with other bank staff when at 0930 hours one person aged 30/35 years came inside the Branch and introduced himself to me as Muhammad Hussain and he went towards the counter and asked from the staff that in the Branch, where Video Recorder is installed, in the meantime, his 4/5 other companions having arms entered in the Bank branch wearing Shalwar Qameez and some wearing the Pants Shirt and they seems to be Baloch they hit butt blow at the head of Bank ,, Guard namely Muhammad Hassan who was injured and they also beaten other Guard Ziaur Rehman and snatched the Repeater Guns from both the Guards of Bank and they forcibly , sit all staff on .Floor and snatched from the Bank Locker cash Rs,3943,239 and also snatched from staff their Mobile phones, and re-moved Video Recorded (Camera) from the Branch and run away in Car Number not known which was present outside. Thereafter I immediately informed at 15 Police Madadgar and sent the Bank Guard Muhammad Hussain to Hospital for treatment and now I claim against 5/6 unknown accused persons/ Dacoits for commission of Bank robbery/Dacoity on Gun Point and snatching cash, two repeater Guns and mobile phones and injuring the Bank Guard Muhammad Hussain and I report for legal action. Statement heard and accepted it correct. (Sd.)
English Ali Mehboob."
2. The investigation of the case was assigned to one Munir Ahmed, S.-I. On 24-8-2009. On 7-9-2009 the S.-I. Munir Ahmed received an information from the S.H.O., Police Station A.V.C. That three accused persons namely, Shah Murad the present applicant, Sikandar and Arif alias Arsalan, who were arrested in Crime Case No,69 of 2009 under charges of sections 353/324/34, P.P.C. During interrogation admitted to have committed dacoity in MCB, Gulshan-e-Jamal Branch. The interim challan has been submitted, wherein the applicant is shown under arrest.
3. It has been inter-alia contended by the learned counsel for the applicant that the applicant was shown under arrest in connection with some other F.I.R. Registered at P.S. AVC Identification parade was made on 19-9-2009 after the delay of about 12 days. The learned counsel states that since after rejection of bail to the applicant by the trial Court on 4-11-2009 and 26-12-2009, substantial development has taken place. According to the learned counsel, examination-in-chief of P.Ws.
Javed Imam and Khurram Ahmed Magsi, has been recorded and both the P.Ws. Who were eyewitnesses of the alleged incident have exonerated the applicant from the alleged offence. The said evidence of P.Ws. Khurram Ahmed Magsi and Javed Imam is available at page 23-25 respectively of Court's file. It is inter alia contended by the learned counsel for the applicant that since the eye-witnesses of the incident have not identified the present applicant and both of them have duly exonerated him from the alleged offence, the applicant is entitled to concession of bail.
He has placed reliance on the case of Abdul Latif alias Mushtaq alias Mulla v. The State 2007 PCr.LJ 1918, wherein it has been held as under:--- "The applicant's bail plea was earlier rejected, consequent thereupon the statement of the complainant was recorded by the trial Court, who had exonerated the applicant, neither identified him nor connected him in commission of the offence of bank dacoity, which indicates that the case of the applicant requires further inquiry.
' In the light of the above circumstances, application Abdul Latif alias Mushtaq alias Mulla son of Haji Mir Muhammad is admitted to bail, subject to furnishing solvent surety in the .Sum of Rs,2,00,000 and P.R. Bond in the like amount to the satisfaction of the trial Court. In case prosecution succeeds in producing incriminating evidence trial Court shall be at liberty to cancel the bail of the applicant."
' Further reliance has also been placed on the following cases:---
(i) Muhammad Rafiq v. The State 1997 SCM R 412, (ii) Tariq Bashir and others v. The State PLD 1995 SC 34, (iii) Anwar Saifullah Khan v. The State and three others 2001 SCM R 1040.
4. Conversely, the learned State Counsel opposed grant of bail on the ground that since the matter is proceeding before the learned trial Court, therefore, the applicant is not entitled to the concession of bail. In this regard he placed reliance on Allah Nawaz v. The State 2005 PCr.LJ 1785/(Lahore), Allah Ditta and others v. The State 1990 SCM R 307 and Iftikhar Ahmad v. The State 1990 SCM R 607 in support of his contentions.
5. I have heard the arguments, perused the record and the case law cited by both the learned counsel in this regard. Admittedly, the present applicant was not nominated in the F.I.R, only his name was included in the challan which shows that the applicant was arrested in some other case i.e. Crime Case No,69 of 2009 by the A.V.0 Police Station. During the interrogation at the above said police station, the applicant was connected in the instant F.I.R. By the Investigating Officer concerned. It is pertinent to mention that the prosecution witnesses, who were shown as eye- witnesses of the alleged offence, namely Khurram Ahmed Magsi and Javed Imam while recording their statement before the learned trial Court have exonerated the applicant from the alleged offence, which makes the prosecution case doubtful and require further inquiry into the matter. I am of the view that the ratio of the case law relied upon by the learned counsel for the applicant i.e. Abdul Latif alias Mushtaq alias Mulla v. The State 2007 PCr.LJ 1918 is attracted in the instant case.
Similarly, further case law relied upon by the learned counsel for the applicant, though relate to the broad principles for the grant of bail, and involved the distinguishable facts, but support the case of applicant to the extent that, in absence of identification of the applicant by the witnesses, no mention of the name of the applicant in the F.I.R, and on mere allegation of involvement of the applicant in some other criminal case, cannot disentitle the applicant for grant of bail.
6. As regards the case law relied upon by the learned State Counsel, these cases referred to the situation where the case before the trial Court was at the verge of conclusion and further no valid ground of bail was available, I am of the view Slut the facts of those cases are distinguishable hence ratio of case law referred is not attracted in the instant case.
7. In view of hereinabove, the applicant Shah Murad is admitted to bail subject to furnishing solvent surety in the sum of Rs,2,00,000 (Rupees Two Lac) and P.R. Bond in the like amount to the satisfaction of the trial Court. However; it is clarified that if the applicant misuses the concession of bail or prosecution succeeds in producing incriminating evidence against the applicant, the trial Court shall be at liberty to cancel the bail of the applicant.
8. Needless to mention that the observations made hereinabove are tentative in nature and the trial Court shall not be prejudiced by such observations and decide the case strictly on merits and on the basis of evidence available on record.