MUHAMMAD NOOR MBSKANZAI, J ---The applicant, through this application, seeks bail, after rejection of his bail application by Additional Sessions Judge-II, Quetta-on 25th November, 2009.
2. The facts, as gathered from F.I.R. No, 159 of 2009 lodged with Police Station, Shalkot, Quetta on 9th August, 2009 by complainant Israr Ahmed, are that the complainant along with his parents reside in Wadahat Colony Second StopRaisani Street and he works in daily newspaper "Kohistan" as generalist. Today he on his personal motorcycle bearing Registration No,90620751,Chassis No,78623417, Model, 2009 Black colour went towards Hazarganji. At about 12-30 Noon, when reached at Qambrani Road Sharif Abad, abruptly a motorcycle 125 CC black coloured stopped in front of him, upon which two persons were boarded; one of them was muffled face, who appeared to be a Bloch. He further alleged that one of them was clean shaved, who was middle age and he can identify him when he appears to him, who was having a T.T pistol by means of which, they snatched his motorcycle. He further stated that while snatching motorcycle, they threatened him for his life, due to apprehension of life he handed over the motorcycle to them. It is further alleged that the accused also snatched his mobile Nokia 1208 having. Sim No,0331-296512. The complainant further alleged that one of the accused boarded on his motorcycle and escaped towards East. On the basis of this F.I.R., the applicant was arrested and in identification parade, the complainant identified the applicant as one of the accused, as such; challan of the case was submitted before the trial Court.
3. During the course of hearing, the applicant moved an application for grant of bail, which was dismissed by the trial Court vide order dated 25th November, 2009, hence this application.
4. I have heard Mr. Nasir Yousafzai, Advocate for applicant and Mr. Zahoor Ahmed Shahwani, learned P.G. Learned counsel for the applicant contended that the applicant has been falsely implicated in the commission of offence. He further contended that the police has managed a false and-fabricated identification parade of applicant conducted before a police officer, which according to learned counsel for the applicant, has no legal sanctity in the eyes of law. The learned counsel further maintained that section 17-E Harraba does not attract in the instant F.I.R., as according to learned counsel, the F.I.R. does not divulge any fact regarding a murderous attack.
The learned counsel also urged that the F.I.R. is delayed for more than one hour, as the place of occurrence is at distance of about five minutes and no explanation in this regard has been offered by complainant. The learned counsel relied on the judgment reported in 1994 PCr.LJ 1068.
On the other hand, the learned P.-G. opposed the bail application and contended that the learned trial Court has rightly dismissed the application of applicant, as during the course of parade, the applicant was identified by complainant.
5. I have carefully considered the contentions put forth by the learned counsel for the parties and perused the record made available to me. It is case of applicant that he has been falsely implicated in the commission of offence, in this context it is to state that the record is silent about any enmity in between applicant and A complainant, question of false implication is out of question applicant was identified by complainant during the course of identification prade:--
(i) The contention of learned counsel with regard to in applicability of section 17(3) Harraba is prima facie unacceptable, as the motorcycle, mobile etc. were snatched by show of force particularly by showing pistol to complainant, hence there is absolutely no force in contention of learned counsel for applicant; as such this argument is repelled.
(ii) As far as legality of identification parade by police is concerned, this submission is contentious, therefore, at bail stage any observation may prejudice the case .of either party.
(iii) The point of delay is of no consequence as in the circumstance of case no delay can be attributed to have occurred, hence this argument is of no avail; even otherwise if one is not entitled to concession of bail on merits, mere delay in lodging of F.I.R. does not constitute a ground for bail, therefore, this submission is bound to fail.
The tentative assessm ent of material available on record, fully implicates the applicant in the alleged commission of offence, hence no sufficient and reasonable ground is available for believing that the applicant is not guilty of the offence, with which, he has been charged. There is no cavil with the legal proposition that deep appreciation of evidence at bail stage is not warranted. So far collected material and its tentative assessment is concerned it can be easily concluded that it was rightly appreciated by the trial Court. Admittedly bail comes within the discretion of the Court and once the discretion was exercised rightly, within the parameter prescribed by law and approved by superior courts, then the superior Courts are always reluctant to interfere with such discretionary order. As regards the authority referred to by the learned counsel, the same is distinguishable on facts and circumstances of the case. So in such view of the matter, I am not inclined to disturb the orders passed by Additional Sessions Judge-II, Quetta on 25th November, 2009. Resultantly, the application is dismissed, however; the applicant is at liberty to move fresh application for grant of bail, after examination of complainant, if fresh ground becomes available to him in the light of statement. Needless to observe that observations made hereinabove are tentative in nature and shall not prejudice the merits of the case.