ABDUL HAMEED BALOCH, J. Through this Criminal Bail Application, the applicants seek post arrest bail in case FIR No.09 of 2022, offence under Sections 395, 397 P.P.C., registered at Levies Thana Khadkoocha.
Earlier the bail application filed by the applicants before the Sessions Judge, Mastung ("trial court") was dismissed vide order dated 04th July, 2022.
2. Briefly stated facts of the case are that the complainant Nasir lodged the referred FIR, alleging therein that on 08.04.2022 at about 10:00 p.m., after offering Taraveh he came home and slept. At about 11:30 p.m. one person kicked him, whereupon he woke up and saw three armed persons, who fastened his hands and feet and broke the lock of box and also took the key of his vehicle and try to start the vehicle but due to chor switch vehicle was not started. Meanwhile three other muffled persons were also standing with his pick-up. They threatened him to show them the chor switch, as such he did, thereafter they started Pick-up No.PAA-088 and took his vehicle. He came to home and saw that the hands, feet and eyes of Fazul-ur-Rehman and Mohibullah were also fastened, be opened them., The accused persons took three touch mobile, and simple mobile containing SIM Nos.0334-4594848, 0315-1628071, 0331-2395177, 0312-8995914, 0346-3138464, and 0315-8044329. He also checked the box and found that the accused persons also took away original documents along with file of his pick-up vehicle, original number plates, original document of motorcycle, cash amount of Rs.151000/- and Muhajir Cards.
3. Heard. Record perused. The record transpires that the complainant Nasir lodged the referred FIR with the allegation that unknown accused persons armed with pistol entered into the house of complainant and forcibly took the vehicle, cash amount, mobiles and original documents of the vehicle and motorcycle. As per prosecution the accused were going towards Mastung in high speed, they signaled them to stop the vehicle but they speed up the vehicle, whereupon they tried to chase them but, on some distance, the accused persons abandoned the vehicle and runaway.
They were chased and two accused have been arrested while one made his escape good.
4. Since sections 395 and 397 P.P.C. have been levelled against the applicants, therefore it would be appropriate to reproduce Sections 395 and 397 P.P.C. as under: "395. Punishment for dacoity. Whoever commits dacoity shall be punished with imprisonment for life or with rigorous imprisonment for a term which shall not be less than four years nor more than ten years and shall also be liable to fine.
397. Robbery or dacoity, with attempt to cause death or grievous hurt: If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person the imprisonment with which such offender shall be punished shall not be less than seven years.
5. The record reveals that that no identification parade has been conducted. Where the accused is not nominated in the FIR, the identification parade is mandatory, but the prosecution after arrest of accused does not bother to made identification parade. In Gul Rehman alias Gul case 2012 YLR 1146, it has been observed that "It is admitted position neither the name of any accused person is mentioned in the FIR nor the description of any accused person have been shown." In the case of Muhammad Suleman v. Riasat Ali 2002 SCMR 1304, it has been observed that "Moreover, non- holding identification parade in respect of respondent after the bring his case within provision under Section 497 Cr.P.C."
6. Prima facie there is no evidence available on record which confirmed the accused are the same person who robbed the complainant. Mere recovery of some robbed property would not amount to offence of robbery. Reliance is placed on the case of Muhammad Rafique v. State 1997 SCMR 412, whereby it has been observed as under: 4 Fact that the petitioner is accused in a number of cases of robbery, is not sufficient to deprive him of his liberty. It has not come on record as to, why identification test of the petitioner through eye-witnesses was not held when his name did not appear in the FIR. Mere production by the petitioner before police of some cash alleged to have been obtained by robbery, in absence of any other evidence. In this respect the observations made in the case of Ishaq Masih v. The State (1993 SCMR 1322) are relevant.
7. The investigation of the case is completed. As per prosecution the accused persons were armed, neither accused caused any injury to c complainant nor weapon of offence have been recovered.
The lesser punishment provided for section 395 P.P.C. is four years and sentence provided for Section 397 P.P.C. is seven years. For deciding the bail application lesser sentence should be considered. Reliance is placed on the case of Shehzore v. State 2006 YLR 3167, whereby it has been held as under: "I have taken into consideration the respective 'arguments advanced by the learned Advocates for the parties and perused the record. Section 395, P.P.C. provides that whoever commits Dacoity shall be punished with imprisonment for, life, or rigorous imprisonment for a term which shall not be less than four years nor more than ten years and shall also be liable to fine. The sentence not less than four years was incorporated by Ordinance III of 1980 on 3rd February, 1980 which make the intention of the legislature very clear that when the case is registered under section 395, P.P.C. the Court cannot award sentence less than four years and can award sentence not more than ten years. Respectfully following the principle laid down in the case of Arshad Mehmood (supra) and Muhammad Akhtar (supra) the applicants are admitted to bail subject to his furnishing surety in the sum of Rs.50,000 and P.R. bond in the like amount each to the satisfaction of trial Court. However, the learned trial Court is directed to expedite the proceedings and dispose of the matter as early as possible."
8. The bail does not mean acquittal of accused rather the custody of accused is handed over to the surety from government. Mere nature of crime is heinous is not a ground to refuse the bail. The bail cannot he withheld as punishment, the liberty of a person is paramount consideration.
Reliance is placed on the case of Manzoor v. State PLD 972 SC 81, whereby it has been observed as under: "It is important to remember that bail is not to be withheld as a punishment. There is no legal or moral compulsion to keep people in jail merely on the allegation that they have committed offences punishable with death or transportation, unless reasonable grounds appear to exist to disclose their complicity. The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run."
In view of above, prima-facie I am of the considered opinion that this is a fit case calling for further inquiry as per the provisions of Section 497(2) Cr.P.C. Therefore, this application is accepted and the applicants Abdul Hadi alias Badul son of Abdul Reiman, Khaliq Dad son of Ghulam Qadir and Abdul Wahid son of Muhammad Azeem are admitted to bail in FIR No.09 of 2022, Levies Thana Khad Koocha, registered under Sections 395; 397 P.P.C., subject to furnishing surety in sum of Rs.
500,000/- each (rupees five hundred thousand each) with PR bond of the like amount to the satisfaction of the Additional Registrar of his court/trial court.
Needless to mention here that the observation made hereinabove are meant for disposal of the instant application alone, which shall have no bearing on merits of the case.