ADNAN-UL-KARIM MEMON, J.---The Applicant namely Farhan Hassan son of Sagheer Hassan is seeking Pre-arrest Bail in FIR No,29/2017 registered for offences under sections 392, and 34, P.P.C. at Police Station Shah Faisal Colony, Karachi.
2. Brief facts of the case are that on 02.02.2017 Complainant lodged FIR against four unknown persons with allegation that on 02.02.2017 Complainant after purchasing 50 prize bonds of Rs, 40,000/-denomination each from State Bank of Pakistan was going home on motorcycle; that at around 2:00 p.m. when Complainant reached Azeem Poora, near Sitara Palace Marriage Hall, Block 2, Shah Faisal Colony, Karachi all of a sudden 2 persons stopped them on gun point; that their 2 other companions armed with weapons also came there and snatched envelope containing prize bonds from the Complainant, mobile phone (NOTE/4) Sim No, 03322240575 from his son and other material; that while snatching away said things they also fired on the ground and fled away on their motorcycles. Thereafter, Complainant lodged above specified F.I.R against unknown persons under section 392/34, P.P.C.
Investigating Officer visited place of incident, recorded statement of witnesses, obtained Call Data Record of mobile and got conducted F.S.L of one recovered bullet shell and on 15.02.2017 obtained report. Initially, Investigating Officer did not get any clue of accused persons therefore; on 27.2.2017, case was disposed of as "A" class while investigation continued. Investigating Officer on the basis of CCTV footage, on 15.3.2017 arrested accused namely Aftab Waheed, and recovered from his possession 50 Prize Bonds of Rs, 750 denomination each, 24 Prize Bonds of Rs, 200 denomination each and 30 Prize Bonds of Rs, 100 denomination each, got his Identification Parade conducted on 21.3.2017; that accused Abdul Waheed also disclosed names of 5 co-accused involved in the crime; On 17.03.2017 Investigation Officer arrested co-accused/Muhammad Ihsan and recovered from his possession 5 Prize Bonds of Rs, 200/- denomination each. On 1.3.2017 Investigating Officer obtained record of snatched mobile "that accused Farhan Hassan is using his Sim No 03452528437 in that mobile, after said progress, Investigating Officer submitted Charge Sheet on 03.04.2017, by adding sections 395, 397 and 109, P.P.C. against all accused before learned Judicial Magistrate, Karachi, East.
3. Per learned counsel Applicant being aggrieved by inclusion of his name in the Charge Sheet approached the court of learned Sessions Judge, Karachi, East for pre-arrest bail, the same was transferred in the court of VIth Additional Sessions Judge Karachi East, which was granted and subsequently said interim bail was recalled vide impugned Order dated 05.05.2017. Thereafter, on 15.05.2017 applicant approached this court for grant of pre-arrest bail, which was granted vide Order dated 15.05.2017 subject to confirmation or otherwise.
4. Mr. Wazir Hussain Khoso, learned counsel for the Applicant has contended that Applicant is innocent and has been falsely implicated by Complainant in collusion with the Investigating Officer with mala fide intention; that Applicant is a driver and has nothing to do with the alleged crime; that name of the Applicant does not transpire in the FIR nor in the Complainant's statement recorded under section 161, Cr.P.C.; that allegation against Applicant is that he used snatched mobile to contact co-accused persons involved in the instant crime but, no evidence is placed on record by the prosecution to connect Applicant with the alleged crime; that Investigating Officer has wrongly applied section 109, P.P.C. against the Applicant with mala fide intention; per learned counsel Applicant, after obtaining interim bail has joined investigation and proved his innocence before Investigating Officer; that no incriminating material has been recovered from the possession of Applicant; that name of Applicant is given by co-accused in his confessional statement before police which is not admissible in evidence under Article 38 of the Qanun-e- Shahadat Order, 1984; that case of Applicant is different from other accused persons; that the case of Applicant requires further inquiry, therefore, Applicant is entitled to concession of Pre-arrest Bail.
5. Ms. Seema Zaidi, learned D.P.G., has opposed grant of Pre-arrest bail to Applicant on the ground that Applicant has used robbed mobile of Complainant with his own Sim card which was on surveillance through its IMEI number; that co-accused namely Aftab Waheed is identified by the Complainant during identification parade; that Applicant along with his companions is involved in heinous crime of robbery; that it has transpired in the Call Data Record of Applicant that he was involved in rekeying of crime with his companions; that prosecution has collected sufficient incriminating material to connect Applicant with the crime; that there is no mala fide on the part of Complainant or police therefore, no extra ordinary relief (bail) can be given to the Applicant.
6. I have heard learned counsel for the parties and perused the material available on record as well as case law cited at the bar.
7. That tentative assessm ent of record reflects that name of the Applicant is not mentioned in the FIR and he is charge sheeted on the ground that he used snatched mobile phone (under surveillance) to contact co-accused persons. Therefore, prosecution has applied section 109, P.P.C. against Applicant for hatching conspiracy in connivance with co-accused persons but Investigation Report is silent on this aspect of the case.
8. Prima facie prosecution has not collected incriminating material which could attract section 109, P.P.C. against the Applicant. Mere obtaining Call Data Recording of snatched mobile phone does not lead, at this stage to the conclusion that Applicant is hatching conspiracy, in connivance with the main accused or he abated the offence of robbery with co-accused. That so far as sections 395 and 397, P.P.C. are concerned prosecution has not alleged that Applicant has robbed the Complainant but, he is booked under section 109, P.P.C. therefore, case of the Applicant requires further enquiry.
9. Apparently, Applicant is implicated on the basis of statement of co-accused which is not admissible in evidence under Article 38 of Qanun-e-Shahadat Order, 1984 hence; benefit of doubt can be extended to Applicant at the bail stage.
10.Investigating Officer present in court stated that Applicant is no more required by him for the purpose of investigation.
11.I am of the view that grant of pre-arrest bail is an extra ordinary relief which is extended in exceptional circumstances when glaring mala fide is shown on the part of prosecution to cause unjustified harassm ent and humiliation of person in case of his arrest.
12.In my considered view it is not proper to depend on ipse dixit of police regarding guilt or innocence of Applicant, which is to be determined on the basis of evidence, which is yet to be proved but prima facie at this stage sufficient incrimination material is lacking connecting the Applicant with the commission of alleged offences, and prosecution has yet to establish its case regarding application of sections 395, 109, P.P.0 at trial. It is well settled by now that where evidence with regard to the allegation of abatement or instigation is lacking the concession of bail can be extended in favour of Applicant. Besides, Applicant has pointed out mala fide on the part of Police, therefore, he is entitled to concession of bail.
13.In view of the above facts and circumstances of the case, I am of the opinion that Applicant/Accused has made out a case for grant of Pre-arrest Bail hence, Interim Pre-arrest Bail granted to Applicant vide Order dated 15.05.2017 is hereby confirmed subject to furnishing solvent surety in the sum of 200,000/- (Rupees two lac) and P.R. bond in the like amount to the satisfaction of Nazir of this court.
14.The above findings are tentative in nature which shall not prejudice the case of either party during the trial.