1. TUFAIL H. EBRAHIM, J.---Through the instant Criminal Bail Application applicants Gul Bahar and Abdul. Majeed seek bail in a case culminated from F.I.R. Crime No, 42 of 2010 registered at Police Station Kandiaro for offence under section 394, P.P.C. and 17/3 Offences Against Property (Enforcement of Hudood) Ordinance, 1979.
2. ' Briefly the facts germane to this bail application are that on 21-8-2010, the complainant Muhammad Shari f son of Haji Khan Muhammad Shaikh lodged the above referred F.LR., alleging therein that he has own shop of mobiles in Drib Mehar Shah, which is being run by complainant and his brother Ghulam Nabi alias Gori Shaikh. 'It is alleged by the complainant that on the day of report, the complainant party was sitting in their shop, in the meanwhile at about 1330 hours four persons came on their shop, who were identified as Abdul Majeed, Gul Bahar both sons Muhammad Bachal Kaleri, Waseem son of Karim Bakhsh alias Kaman Shaikh with T.T. pistols and. one unidentified Punjabi whose name is not known, he was seen clearly and would be identified if seen again having lathi in his hand, on arrival they demanded keys of shop, on the refusal of complainant, accused Waseem Shaikh and Gul Bahar caught hold the complainant from his arms, accused Abdul Majeed and unidentified accused forcibly robbed keys from his brother Ghulam Nabi, opened "Drawer" robbed cash Rs,200,000 and below detailed mobile phones and chargers of the mobile phones and batteries, and sims, on resistance of brother of complainant, accused Abdul Majeed caused blows of pistol and unidentified accused caused lathi blows to him. The complainant party raised cries on which their relatives namely Abdul Shakoor alias Leloo son of Muhammad Ramzan Shaikh and others came running on seeing them all the accused persons while taking robbed property fled away in the streets, the complainant party saw that brother of complainant sustained blows on his left leg, left arm and back, the complainant went at village and narrated the above facts to nekmards, who advised to lodge the F.I.R. at Police Station, therefore the complainant went to Police Station and lodged the F.I.R ' The applicants preferred their bail application before the learned trial Court which was declined by the learned IIIrd Additional Sessions Judge Khairpur vide order dated 19-10-2010, hence the present bail application was moved before this court.
3. ' Per learned counsel for the applicants/accused the applicant/accused are innocent and have no nexus with the commission of alleged offence. Per learned counsel, there is violation of section 103, Cr.P.C. as no private/independent mashirs have been associated by the complainant party and the witnesses so, mentioned in the F.I.R. are related inter se. Per learned counsel, the complainant party was not medically examined and have falsely been implicated by the complainant due to enmity over matrimonial affairs. According to learned counsel no recovery of alleged stolen goods or amount was effected. from the applicants/accused except one mobile phone was alleged to have been recovered from the applicants/accused. Per learned counsel the pistols have been foisted upon the applicants/accused. The learned counsel argued that co-accused Waseem has been granted bail by the trial Court, as such in view of rule of consistency the applicants/accused are also entitled for concession of bail. It has also been urged by the learned counsel that the case of applicants/accused is doubtful, hence requires further enquiry within the ambit of subsection (2) of section 497, Cr.P.C. The learned counsel for the applicants/accused in support of his contentions has relied upon the following case law.
4. (i)2000 PCr.LJ 186. (Lahore)
5. (ii)1994 PCr.LJ 471 (Karachi).
6. ' The learned D.P.-G. appearing for the State vehemently opposed the present bail application. He submits that the applicants/accused are nominated in the F.I.R. with specific role, as applicant/accused Gul Bahar caught hold the complainant while applicant/accused Abdul Majeed forcibly robbed keys from the brother of complainant opened drawer (Dakhal) robbed cash of Rs, 200,000 and mobile phones, batteries and sims, further more the applicant/accused caused Kundak blows of pistol to brother of complainant. Per/learned D.P.-G. one mobile phone was recovered from both the applicant/accused while one cutter was recovered from applicant/accused Gul Bahar. According to learned D.P.-G. offence of robbery is punishable for 14 years and no proof of enmity with complainant has been produced by the applicants/accused, therefore it cannot be considered at bail stage and only tentative assessment is to be considered.
7. Heard the learned counsel of the applicants/accused and the learned D.P.-G. and perused the record and the reported case laws. The applicants/accused have been nominated in the F.I.R. and specific roles have been assigned to them, but no recovery of the robbed case and/or goods have been' made from them. There is delay of two and half hours in lodging the F.I.R. and consultation and deliberation cannot be ruled out. The place of 'the alleged incident is situated in crowded area and took place in broad daylight, but adjacent shop: owners/independent witnesses have not been associated in the investigation and the only A witnesses are relatives of the complainant party. No medical report has been produced and there is allegation of personal enmity between the complainant party and one of the co-accused, which prima facie makes the case of the prosecution not free from doubt and hence the applicants/accused have made out a case of further enquiry within the ambit of section 497(2), Cr.P.C. Since one of the co-accused Waseem has been granted bail by the trial Court, as such in view of rule of consistency the applicants/accused are also entitled for concession of bail.
8. ' For the aforesaid reasons the applicants/accused are granted bail in the sum of Rs, 100,000 (Rupees One Hundred Thousand, only) each with one surety and P.R. bond in the like amount to the satisfaction of the trial Court. The trial Court should not be prejudiced or influenced by the above discussions which are only tentative in nature and should decide the case expeditiously on the basis of the available on record and evidence to be adduced at trial.