1. TUFAIL H. EBRAHIM, J.---This bail application is directed against the order dated 8-9-2010, passed by the learned 1st Additional Sessions Judge, Karachi South in Session Case No, 220 of 2010, arising out of F.I.R. No, 293 of 2010 under section 395, P.P.C. registered at Police Station Defence, whereby the bail application of the applicant was rejected.
2. ' Brief facts of the prosecution case are that statement under section 154, Cr.P.C. of complainant Saeed Ahmed son of Fazl-e-Rabbi was recorded on 13-5-2010 at 1400 hours, in which he has stated as under:-- "I along with my family members are residing at the given address and doing my own business.
3. That today on 13-5-2010 when we all the inmates of the house were sleeping in our rooms separately, when at about 9-45 p.m. our chowkidar (Watchman) Lal Bux son of Jahanzeb, driver Zahid son of Qaim and my father were brought by four persons wearing pant shirt out of which two were armed with Kalashnikovs, while two were armed with pistols, to my room. From the tone one looks like Pathan Hindko and three were looking like Urdu speaking, who also took me on gun-point and made me and other family members of the house sit in the room of my father and taken mobile phones from all of us. Two persons 'holding Kalashnikovs stood as guard .upon us, wliile other two persons started searching the house, and by breaking the Almirahs took out gold ornaments, cash amount of Rs,1,50,000, four wrist watches, one licensed pistol of .9 MM. bearing No, H-68289-2 which was in the name of Saeed Ahmed. I will provide the list of other articles later on.
4. During the occurrence they were talking with each other on phone. At about 11-45 p.m. after committing the occurrence the culprits fled away in a white corolla car parked outside, in which a person was present. All the four persons can be identified by us. My claim is against five unknown identifiable persons, who forcibly entered into the house and on the show of weapon taken away the above articles."
5. ' On the basis of above statement F.1.R. No, 293 of 2010 was registered at Police Station Defence on 13-5-2010 at 1445 hours. On 26-6-2010 applicant/accused Javed Iqbal was arrested in some other case by the police of Police Station Defence and during interrogation he has confessed about the commission of the offence of F.I.R. No, 293 of 2010, and on such confession the applicant/accused was also arrested in this case. During investigation identification parade of the applicant/accused was also conducted before the concerned Magistrate through the eye-witnesses namely Saeed Ahmed (complainant), Fazl-eRabbi (father of complainant) and Adnan Khan, who have correctly identified the applicant/accused as the same culprit" The applicant/ accused has also disclosed the names of his companions as Waheed and Zafar Ghulam Ali. After completing the investigation challan has been submitted by showing Waheed and Zafar Ghulam Ali as absconders.
6. ' Learned counsel for the applicant/accused has contended that name of the applicant/accused is not appearing in the F.I.R. Per learned counsel on 7-6-2010 when police party along with the present. complainant had attempted to arrest the accused in Malir Court, while he was returning back to his home on his Motorcycle No,KEK-7638, after attending the Court, but it was foiled by the advocates of Malir Court, however the police had taken away the motorcycle of the applicant/accused. Per learned counsel the identification parade has no value in the eyes of law because of the fact that complainant had already seen the applicant/accused at Malir Court, when police attempted to arrest him. Learned counsel has also contended that initially the F.I.R. was registered under section 395, P.P.C. against five accused persons but subsequently the (Malian has been submitted before the trial Court under section 392, P.P.C. by showing three accused persons, which create serious doubts in the case of the prosecution. Per learned counsel actually the applicant/accused was arrested on 20-6-2010 from the bazar situated at Hazrat Bilal Colony, Korangi Sector 8/A and at the night time police party has raided the house of applicant/accused and taken away National T.V 20" with speakers, .9 MM pistol China made, perfumes and bath soap.
7. On 23-6-2010 mother of the applicant/accused has moved an application to the Honourable Chief Justice of the Sindh High Court regarding recovery of the above articles and the said application was sent to District and Sessions Judge, Karachi East for further proceedings and the District and Sessions Judge, Karachi East ordered for recovery of the said articles. Per learned counsel nothing has been recovered from the possession of the applicant/accused and the alleged recovery of Rolex wrist watch has been foisted upon him, which in fact belongs to the applicant/accused.
8. Learned counsel in support of his contention has relied upon the following case (1)Case of Habibullah v. The State as reported in 2005 M LD 558.
9. (2)Case of Badlo and another v. The State as reported in. 2004 PCr.LJ 157.
10. ' On the other hand learned A.P.-G. has vehemently opposed this application on the ground that the applicant/accused has been identified by the complainant party who were eye-witnesses and there was recovery of Rolex watch and the applicant/accused has a criminal history and who has even made a confessional statement. Per learned A.P.-G. the applicant/accused is also involved in another offence for which another F.I.R. No, 367 of 2010 has been lodged.
11. ' I have heard the learned counsel of the applicant/accused, learned A.P.G and perused the record and the case laws cited by the learned counsel for the applicant/accused. No doubt the applicant has not been named in the F.I.R. but the'applicant/accused has been identified by the complainant party. who-were eye-witnesses to the crime. Prima facie there is no grudge or inala tide on the part of tile complainant against the applicant/accused to falsely implicate the applicant/accused in the crime.
12. ' Recovery of stolen Rolex watch has also been made from the applicant/accused and no reasonable explanation has been given as to why the accused had escaped from the Malir Court.
13. The two case laws relied by the counsel of the applicant/accused are distinguishable, Prima facie no case has been made out for further inquiry and tentatively there is no reasonable ground to believe that the applicant/accused has not committed the alleged offence to entitle him for the grant of bail at this stage. Accordingly this bail application is dismissed.
14. ' The above observations and discussion are only tentative and preliminary in nature and should not influence in any Manner the trial Court in arriving at a just and fair decision, based on the evidence to be adduced at trial.