1. ' AFTAB AHMED GORAR, J.---The applicant Shahzad son of Wazeerzada seeks bail in Crime No,401 of 2012 registered at Police Station Shah Latif Town under sections 382/34, P.P.C. The prosecution story, in nutshell, is that on 28-6-2012 the complainant who is driver of Trailer bearing Registration No,TLC.905 loaded Ghee in the shape of Tins, Packets and Cartons total weighing 36130 Kg. In the truck from the factory situated at Korangi Karachi and on 29-6-2012 proceeded to Katcah Khoya Punjab for supply of said ghee along with second driver Abu Bakar and conductor Waqar and when they came down to the bridge of Zafar Town and reduced the speed of the vehicle due to speed breaker, one Mazda reached there wherefrom three persons came down and stopped the complainant party and after getting them down, robbed cash, mobile phones and took away Trailer loaded with ghee as stated above.
2. ' Learned counsel for the applicant argued that incident took place on 29-6-2012 whereas F.I.R. Was lodged on 3-7-2012, hence there is unexplained delay of five days in lodging the F.I.R. He further submitted that applicant was arrested on 21-7-2012 and after his arrest no identification test was held before any Magistrate; no recovery has been effected from the exclusive possession of the applicant. Recovery was made from the Adda of one Jaffer Khan and at the time of raid, the owner of the Adda fled away. He further contended that extra judicial confession allegedly made by the applicant before police is also not admissible in law. He relied upon the decisions reported in 1997 SCM R 412, 1997 SCM R 971 and 2002 SCM R 1304.
3. ' Conversely, Ms. Seema Zaidi, A.P.-G. Appearing for the State argued that the delay in lodging of F.I.R. Is fully explained by the complainant and the recovery was effected on the pointation of the applicant. She relied upon the case reported in 1995 SCM R 614.
4. ' I have heard learned counsel for the applicant as well .As learned A.P.-G.. And perused the material available on record.
5. Five days' delay in lodging of F.I.R. Has not been explained by the complainant when the distance between place of incident and Police Station is only 5/6 K.M. After arrest of the applicant he was not produced before the concerned Magistrate for the purpose of identification test. Only extra judicial confession of the applicant was recorded by the police which too was not admissible in law under Article 38 of the Qanun-e-Shahadat. No recovery has been effected from the exclusive possession of the present applicant, nor he is owner of the Adda of Jaffer Khan from where the recovery was effected.
6. ' In the case reported in 1997 SCM R 412 it was held by the honourable Supreme Court "Record did not show as to why identification test of the accused through eye-witnesses was not held when his name did not appear in the F.I.R. Mere production by the accused of some cash before police alleged to have been ' robbed by him, in absence of any other evidence was not enough for his involvement in the case."
7. When police recovered the robbed properly, no private person was cited as a mashir, as such violation of section 103, Cr.P.C. Has been made. In 1997 SCM R 971 it was held as under:-- "Holding of identification test could not be dispensed with simply because accused who had allegedly committed the robbery had been subsequently found in possession of the robbed goods.---truck having been robbed in the presence of the complainant driver, and his cleaner, identification test through them was absolutely necessary. The Investigating police did not appear to have complied with the provisions of section 103 Cr.P.C. While effecting the recovery of the robbed truck.
8. ' The case-law relied upon by learned A.P.-G. Is distinguishable and not attracted to the facts of the case in hand as in the cited case the accused led the police to his house and pointed the place from where gun was recovered but in the present case the applicant did not led the police to his house for effecting recovery..
9. The upshot of above discussion is that the case of present applicant does not fall within the prohibitory clause of section 497, Cr.P.C, and requires further inquiry. The applicant is therefore admitted to bail in the sum of Rs, 1,00,000 (Rupees One Lac only) and P.R. Bond in the like amount to the satisfaction of the trial court.