1. MUHAMMAD TASNIM, J. ---Both the applicants are booked in Crime No,70 of 2010 of Police Station Shahpur Chakar, under section 17(3) Offences Against Property (Enforcement of Hudood)
2. Ordinance, 1979.
3. The case as set out in the F.I.R., is that on 15-8-2010, complainant, Chaudhry Fakir Illahi and Babu Din Muhammad were coming towards Khadro through the western path of Jamrao Canal upon motorcycle No, NHD-3061 of Speed Company, when at about 1200 hours they reached at Wasan Path, three armed persons intercepted with the show of weapons and stopped them, snatched their motorcycle and then went away towards northern side. It is, further stated that all the three culprits had pistols in their hands, whose faces were unmuffled and can be identified if seen again.
4. It is further stated that the complainant was searching the motorcycle at his own but finally lodged the present F.I.R.
5. Learned counsel for the applicant has submitted that the alleged incident has taken place on 15- 8-2010 and F.1.R. was lodged on 7-9-2010. He says that delay of 22 days has not been explained by the prosecution. Learned counsel for the applicant further submits that the applicants have been implicated malafidely due to enmity with the local police that is why, they have been booked in a blind F.I.R. He further submits that no identification parade as required was conducted. He says that neither the name, nor the description of any accused person has been mentioned in the F.I.R. nor any role has been assigned to each individual. In the end learned counsel submitted that complainant had filed his affidavit exonerating the present applicants before the learned trial Court but such affidavit was not taken into consideration while passing orders on the bail application by the learned trial Court. He submitted that once again the complainant has filed affidavit in these proceedings on 10-11-2010 and P.W. Deen Muhammad has also filed his affidavit on same date to the same effect. He also invited my attention to other affidavits filed by the complainant on 20-12-2010. Learned counsel has further submitted that the complainant and the P.W. Deen Muhammad have appeared before the Additional Registrar of this Court for swearing the affidavits and even can be called in this Court. He says that since the complainant and P.W. Deen Muhammad have already expressed their' opinion with regard to non-involvement of the applicants it will be futile to keep them behind the bar. He says that it will be appropriate that both the applicants be enlarged on bail and then they be allowed to face the trial. In support of his contention learned counsel has placed reliance on the case of Muhammad Najeeb v. State (2009 SCMR 446).
6. Conversely, Mr. Shahid A. Shaikh, the learned A.P.G. has vehemently opposed the grant of bail and has supported the order passed by the learned trial Judge in Bail Application No,752 of 2010.
7. Learned A.P.-G. while justifying the delay has stated that in the first place complainant was searching the motorcycle at his own and thereafter he reported the matter. In his opinion, the delay has been successfully explained by the complainant. With regard to filing of affidavits learned APG states that the affidavit filed by the complainant and P.W. Deen Muhammad if considered, it will amount to deeper appreciation of evidence at bail stage. He further submits that the action of the complainant and the P.W. named above, amounts to tampering of the evidence as well. He says that there is ample material available on record which connects the applicants with the commission of the offence and they may not be enlarged on bail.
8. I have heard the learned counsel for the parties and have perused the record and the case-law cited at bar.
9. It is an admitted position on record that neither any name is mentioned in the F.I.R., nor the description of the accused persons, nor the role has been assigned to any one. With regard to the recovery allegedly made by the police from the applicants there is no material available to suggest that such recovery was effected in this case being Crime No,70 of 2010, because on the same day against the present applicants another F.I.R. bearing Crime No,22 of 2010 in another police station was registered, in which the same motorcycle has allegedly been recovered from the present applicants. It is yet to be seen and determined whether recovery, was effected in this case or not, unless the evidence is recorded.
10. Now considering the affidavits filed by the complainant and P.W. Deen Muhammad, the case of the prosecution has become doubtful; as the complainant and the said P.W. on oath have stated before this Court that present applicants were not identified by them. The complainant has further stated that he has never given the names of the present applicants at the time of lodging the F.I.R.
11. He further stated that the alleged motorcycle was foisted upon the applicants by the police and no recovery was effected by the police from them. He stated his no objection to the grant of bail to the present applicants. P.W. Deen Muhammad in his affidavit, has stated that he was not present at the scene and he was informed by the complainant about the alleged incident and he had also no knowledge about, accused persons. He has also stated his no objection to the grant of bail to the applicants.
12. It is settled law that deeper appreciation of the evidence at the bail stage cannot be gone into but only tentative assessm ent is to be made just to find out as to whether the accused persons are connected with the offence or not. The discussion made hereinabove clearly makes the present case doubtful, as it requires further enquiry in terms of provisions of section 497(2), Cr.P.C. In these circumstances and following the dictum laid down in the case of Najeeb (Supra) for the time being I ,believe the complainant and P.W. been Muhammad who have stated on oath that present applicants were not involved in the present case and no recovery was effected from them.
13. For the foregoing reasons I admit the present applicants on bail on their furnishing solvent surety in the sum of Rs,50,000 (Fifty Thousand) each and P.R. Bond in the like amount to the satisfaction of the trial Court.
14. Needless to mention that observations contained in the above order are tentative in nature and shall not influence the trial Court while dealing with the case on merits after recording the evidence of the parties.