' SYED HASAN AZHAR RIZVI, J.---Urgent Application is granted.
2. Exemption is granted subject to all just exceptions.
3. This bail application is filed by the applicant after rejection of his bail application vide order dated 10-12-2011 passed by the IInd Additional Sessions Judge, Karachi-Central.
' Precisely, the facts of the case as narrated in the F.I.R. Are that the complainant is working in a Security Company of Karachi as Site Supervisor. A guard of their company namely Muhammad Ameen son of Sher Muhammad was performing duties at Al-Karim General Store and had company's licensed Repeater Gun 12 bore having No,B-3920. On 23-9-2011 he informed the company through phone that while he was performing his duty at about 1700 hours in the evening two armed persons came there and snatched the Repeater gun referred to above from Muhammad Ameen on the point of weapon in front of Al-Karim Store and went away. The companies officials tried themselves to get information and thereafter, on the instructions of the company came to lodged the report. Complainants claim is against two younger age armed accused persons identified by faces for snatching away the aforesaid Repeater Gun from Security Guard Muhammad Ameen on gun point. Security Guard Ameen can identify them.
' Learned counsel for the applicant submits that the applicant is innocent and has falsely been implicated in this crime. It is urged by the learned counsel that the alleged incident had taken place on 23-9-2011 while the same was reported on 24-10-2011 and there is unexplained delay of about thirty days. Learned counsel for the applicant further contended that the complainant is not the eye-witness of the incident and his evidence is consisting of hearsay, therefore, according to Qanun-eShahadat his evidence carries no weight in the eyes of law. It is further contended that the alleged weapon was not recovered from the possession of the applicant nor on his pointatoin and recovery has been foisted upon the applicant/accused. It is further argued that the identification parade of the applicant/accused was not held before the Judicial Magistrate and allegedly the eye-witness Muhammad Ameen identified the applicant/accused in the Police Station, which carries no weight in the eyes of law. It is further contended by the learned counsel that the learned had Additional Sessions Judge, Karachi-Central dismissed the bail application without considering the material and argument advanced on behalf of the accused, which reflects from her order dated 10-12-2011 that she has written the arguments advanced by the learned DDPP in the name of learned counsel for the applicant and the arguments which were advance by the leraned counsel for the applicant were not written in the order. He has relied upon the following judgments:--
(1) 1997 SCM R 421, (2) 1997 SCM R 971 and (3) 2001 SCMR 1907.
' Conversely, learned A.P.-G. Opposed the grant of bail and submits that the applicant/accused was identified by the eye-witness Muhammad Ameen from whom the Repeater gun was snatched.
' It is admitted positions that the name, hulia or any description of the applicant/accused has not been mentioned in the F.I.R. And the F.I.R. Was lodged after the unexplained delay of about thirty days by the Site Supervisor of the Security Company instead of Muhammad Ameen from whom the repeater gun was snatched allegedly by the applicant/accused. It is also an admitted position that the identification parade of the applicant/accused was not held before the Judicial Magistrate, which is necessary in the cases where the name of the accused is not mentioned in the F.I.R. If any authority is needed, reference can be made to the case of Farman Ali v. The. State reported in 1997 SCM R 971, wherein the honourable Supreme Court has held that:-- "Holding of identification test becomes necessary in cases, where names of the culprits are not given in the F.I.R. Holding of such test is a check against false implication and it is a good piece of evidence against the genuine culprits. Holding of identification test cannot be dispensed with, simply because the person accused of committing the robber, has been subsequently found in possession of the robbed goods. It is not necessary that the eye-witnesses of the robbery should have witnessed the recovery of the robbed property. It was not the prosecution case that the recovery of the robbed truck took place in presence of the complainant and his cleaner and hence identification test of the petitioner through the complainant and Qamar Shahzad was absolutely necessary....
' In view of above, the case of the applicant/accused is of further inquiry, therefore, I allow the applicant to be released on bail subject to furnishing surety in the sum of Rs,100,000 (Rupees One Lac only) and P.R. Bond in the like amount to the satisfaction of the Trial Court.
' Observations made hereinabove are of tentative nature and the trial court shall not be influenced by any such observation.