1. ' SYED HASAN AZHAR RIZVI, J.---Being aggrieved and dissatisfied with the orders dated 12-9-2011 and 22-9-2011 both passed by the learned IIIrd Addl. District and Sessions Judge, Karachi South whereby both the bail applications moved by the both the applicants have been dismissed, hence these Criminal Bail Applications.
2. ' Since both the Cr. Bail Applications are arising out of same F.I.R., I intend to dispose them off by this common order.
3. ' Brief facts of the case, as narrated in the F.I.R., are that the complainant had published an advertisement for sale of his Car bearing No,AFR-2010, Honda Civic, White Colour, Engine No,198R- 1817984248, Chassis No,NFBFD16770- R124183. He received a phone call from an unknown person asking Complainant's address to see the car, which was published for sale. On 10-12-2010 two persons came to his house and the deal was finalized against the consideration of Rs,19,90,000. The applicant/accused asked the banker of the complainant and told him that he will come back with pay order. On 13-12-2010 the applicant/accused informed the complainant that he is coming to the Bank along with the pay order. The complainant was waiting outside the Bank and the applicant reached after closing of the Bank. The applicant gave me a cheque of Soneri Bank, which was deposited by me. When the complainant came out from the Bank the applicant was not present and upon enquiry on phone, the applicant told the complainant that he is coming after namaz.
4. After some time the applicant came to the complainant and asked him to give the key of the car to the, applicant to check it. The applicant started the car and went away. The complainant made a phone call to the applicant, to which he replied that he is coming after getting the car checked by his family members, but the applicant did not come back and power off his cell phone.
5. ' It is, inter alia, contended by Mr. Muhammad Hanif Qureshi, learned counsel for the applicant Kashmaly Khan that the applicant is innocent and has falsely been involved in the crime in question and even his name has not been mentioned in the F.I.R. He further contended that the Applicant Kashmaly Khan has been involved on the statement of co-accused Farhan Yousuf and the involvement in the offence of the applicant on the statement of the co-accused has no value under the Qanun-e-Shahadat, 1984. Learned counsel for the applicant Kashmaly Khan has contended that no role has been assigned in the F.I.R.
6. ' According to the learned counsel for the applicant that the F.I.R. Lodged under sections 420, 471 P.P.C. Are bailable and 468 P.P.C. Is not bailable but not come within the prohibitory clause of section 497, Cr.P.C. And the F.I.R. Has been lodged after inordinate delay of two days, which has not been explained by the police. Even nothing has been recovered from the applicant and no identification parade has been held by the police.
7. ' Mr. Gul Muhammad Hajano, learned counsel appearing on behalf of applicant Farhan Yousuf, while placing the same arguments as of Mr. Muhammad Hanif Qureshi, learned counsel for the applicant Kashmaly Khan, has further contended that applicant Farhan Yousuf has not made any confessional statement and he has not been identified in any identification parade and no evidence is available against both the applicants with the prosecution. According to the learned counsel, the offences under section 420, 471 P.P.C. Are bailable and 468, P.P.C. Pertains to forgery, which issue required further enquiry. In support of his contentions learned counsel has placed reliance upon the case of Saeed Ahmed v. The State (1995 SCM R 170), Muhammad Azeem v. The State (2011 SCM R 1533), Saeed Ahmed v. The State (1996 SCM R 1132) and Ghulam Qasim alias Muhammad Qasim v. The State (1991 PCr.L.I 2418).
8. ' On the other hand, Mr. Abrar Ali Khichi learned Addl. Prosecutor General, Sindh has vehemently opposed the bail applications of the applicants and stated that the car has been recovered from the applicants and so also his footage is very much available on CCTV Camera. Even no enmity has been proved by the applicants with the complainant as to why the Complainant has involved them in this offence.
9. ' I have heard the learned counsel for the applicants, learned Additional Prosecutor-General, Sindh and perused the entire record available before me.
10. I have considered the submissions of the learned counsel for the parties. It is an admitted position that the F.I.R. Lodged under sections 420, 471, P.P.C. Are bailable and 468 P.P.C. Is not bailable and even not come within the clause of section 497 Cr.P.C.
11. ' It may be observed that the crimes, though which do not come within the definition of heinous are increasing day by day and the innocent persons have been deprived from their valuables and the accused persons, while taking shelter of minor technicalities/lacunae made by our Law Enforcing Agencies, get relief(s) from the Courts and could not be punished due to flaw in the investigation.
12. The case-law cited by the learned counsel for the applicant are distinguishable with the facts and circumstances of the case of the present A applicants.
13. ' In my opinion, although the offence in question does not fall within the prohibitory clause but the applicants had deprived the complainant from his property, therefore, me applicants do not deserve any leniency and/or discretionary relief by this Court. This Criminal Bail Application is, therefore, dismissed.
14. ' However, it appears from the arguments of the learned counsel for the applicants that no step has since been taken by the learned trial court in the case of the applicants, therefore, it would be just and proper to direct the learned trial Court to examine at least two star witnesses in the case of the applicants within a period of two months from the receipt of this order, thereafter the applicants would be at liberty to move their bail applications.
15. ' Both these Criminal Bail Applications have been dismissed by a short order dated 20-10-2011.
16. These are the reasons for the same.
17. ' The observations made in the order are of tentative in nature and the learned trial Court shall not be influenced by any of the observations made hereinabove.