ABDUL MOBEEN LAKHO, J.--Having remained unsuccessful in obtaining his release on bail from the trial Court in case Crime No.368 of 2019 registered at Police Station Eidgah, Karachi, under section 395, P.P.C. Now the applicant is seeking fol his post arrest bail in the said crime through instant bail application.
2. Brief facts of the prosecution case as narrated in FIR by the complainant namely Mugheeb son of Muhammad Ali resident of Ratia Manzil 3rd floor near Joobli Market Noor Masjid, Karachi, lodged FIR No.368/2019 under section 395, P.P.C. at Police Station Eidgah on 05.10.2019, wherein he state that he along with his friends namely(1) Ilyas
(2) Asad were sitting at Chand Bibi Road Nalay wali street/gali and talking, at about 0035 hours, two girls came to us and signaled. In the meantime four young boys on three motorcycles came and stopped there. Out of them three culprits got pistols and snatched Rs.36,000/- mobile phone Nokia 3310, from Ilyas mobile phone touch screen G4 Rs.3500/- from Asad Rs.16,000/-. Their ages were between 25/30 years, then picked the girls on the motorcycles and fled away . When they will come in front will identify them.
His claim against the accused persons is that the show him weapon and forcibly taken cash and mobile phone.
Hence, this FIR.
3. Mr. Shoukat Iqbal, the learned counsel for the applicant contended that applicant is innocent and has been falsely implicated in this case; that the investigation officer has recorded the statements under section 161, Cr.P.C. of prosecution witness namely (1) Fawad son of Imtiaz (2) Ilyan- and Asad wherein they stated that they called/informed at 15 but in FIR this fact is not mentioned, there are major contradictions in the FIR and statements of the witnesses. Therefore, the prosecuti on story is highly doubtful and the matter requires further inquiry; that the present FIR was lodged by the complainant against the unknown accused persons and the present accused was arrested and booked in the present case, the police/I.O. has failed to put the accused in the identification parade before the competent Court of law. Therefore, the prosecution story is highly doubtful and matter requires further inquiry; that nothing has been recovered from the possession of present accused, the recovery as shown by the I.O. in the charge sheet is foisted upon him by the police with the collusion of the complainant; that the heinous crime as alleged by the prosecution not free from the mala fides and bad intentions and the said crime has not been committed by the present applicant he is just booked in the older FIR to satisfy the high ups in cases where progress of the police party is not being shown to them, hence, this false case against the applicant/accused is not a fit case and there is no probability even to be convicted hence, this bail; that the prosecution is failed to bring the accused before the competent Court of law for recording of his confessional statement under section 164, Cr.P.C.; that the present case is without solid substantial evidence, which is unlikely to be proved against the applicant/accused and it appear without into doubt that he has been booked/fit in this false case with mala fide intentions and ulterior motives; that in the circumstances of the keeping the applicant/accused in the jail and breaking the case in abuse of the process of Court and miscarriage of law and justice and it would be just and proper that their liberty is restored, hence the present matter requires further inquiry and that there is no possibility of absconsion of the accused, if he is released on bail, hence, prayed for grant of bail.
4. Mr. Abdullah Rajput, learned Deputy Prosecutor General opposed this bail application on the ground that the offence of the accused is against the society and prayed that this bail application may be dismissed.
5. I have heard the learned counsel for the parties at length and have gone through the case papers so made available before me.
6. It is observed that the accused has not been named in the FIR, no incriminating material has been recovered on pointation, there is no CRO against the present accused. The essential identification parade application was dismissed on 15.10.2019, as it did not follow the guidelines provided in the pronouncement of the Hon'ble Supreme Court. The latest being in the matter of Kanwar Anwar Ali, Special Judicial Magistrate (PLD 2019 SC 488). The above application was dismissed on the ground that I.O. has not taken precautionary measures for hiding the identity of the accused and was brought for identification parade with the open face. Admittedly the name of the culprit is not mentioned in the FIR and the applicant was not known previously to the complainant. The offence under section 395, P.P.C. is punishable for imprisonment for life or 10 years and not below 4 years and fine. It is well settled that while examining the question of bail, Court has to consider the minimum aspect of sentence provided for the alleged of fence in schedule.
7. In view of the foregoing, learned counsel for the applicant has made out a case of further enquiry within the meaning of subsection (2) of section 497, Cr.P.C. Accordingly , the instan t bail application is allowed.
Applicant/Accused Faizan son of Ikhlaq Ali is released on bail from the jail subject to furnishing his solvent surety in the sum of Rs.100,000/- (rupees one lac only) in the like amount to the satisfaction of the Nazir of this Court.
8. The observations made herein-above are tentative in nature and shall not prejudice the case of either party during trial. However , the learned trial Court may proceed against the applicant if he will be found misusing the concession of bail.
9. These are the reasons of my short order dated 05.03.2020.
This Criminal Bail Application stands disposed of in the same terms.