MUHAMMAD SALEEM JESSAR, J. Through this bail application, Applicant Ismail son of Shah Bakhti Rawan seeks his release on post arrest bail in Crime No. 359/2024 of P.S Manghopir under Section 397/34 P.P.C. The applicant had earlier filed post arrest bail application before trial Court, but his request was turned down by orders dated 12.06.2024, hence this application.
2. The facts of the case are already mentioned in the FIR, which is annexed with Court file, therefore, there is no need to reproduce the same.
3. Learned counsel for the Applicant submits that name of the Applicant does not transpire in FIR; even nothing has been shown to have been recovered from his possession and no identification parade was conducted. Learned counsel further submits that applicant was arrested on 05.05.2024; however, challan has been filed by the Investigating Officer on 09.06.2024, even then the case is still pending for preliminary proceedings before lInd Civil Judge and Judicial Magistrate Karachi-West, however, no documentary evidence is available to believe that case is pending before said court. However, per police file the accused was remanded to jail custody by the court of IInd Civil Judge and Judicial Magistrate Karachi-West. He contended that Applicant is in custody right from day of his arrest without substantial progress in his trial. He, therefore, submits that the Applicant may be enlarged on bail. To support his contentions, he has relied upon the case of Farman Ali v. The State (1997 SCMR 971).
4. Learned Assistant Prosecutor General, Sindh appearing for the State opposes the bail application on the ground that sufficient material has been collected by the police against Applicant and offence with which he stands charged, carries maximum punishment. He further submitted that applicant is habitual in committing such type of offences as he is involved in other cases of like nature, therefore is not entitled to bail.
5. Heard arguments. Admittedly; the name of the applicant does not transpire in the FIR nor any descriptions of the accused were given by the complainant. Mere recovery of a cellphone, the robbed article, was not sufficient to exempt the prosecution from holding identification parade of the accused. It is settled principle of law that where names of the culprits are not mentioned in the FIR then holding of identification test become necessary as a check against false implication and it is a good piece of evidence against the real culprits. Holding of identification parade cannot be dispensed with, simply because an accused of committing robbery, has been subsequently found in possession of the robbed, property. In case of Farman Ali v. The State (1997 SCMR 971), Hon'ble Supreme Court of Pakistan while dealing with identical issues has laid down in para-7 of the Judgment, as under; "7 Holding of identification test becomes necessary in cases, where names of the culprits are not given in the FIR. 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 robbery, 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. The prosecution has not brought sufficient material on record to show that in effecting recovery of truck the investigating police complied with section 103 of Cr.P.C. Such point and many others, have to be looked into at the time of the trial: For the present, the petitioner appears to have made out a case for being released on bail."
6. As far as, contention of learned Addl. PG, Sindh that the offence carries maximum punishment, is concerned, the Legislature has provided punishment for Section 397 P.P.C "shall not be less than 7 years". Moreover, none from the Complainant party had sustained any grievous injury or hurt at the hands of accused at the time of committing robbery even it has not been shown that accused allegedly used any deadly weapon and caused grievous hurt to any person or attempted to cause death to any person. Moreover, no offensive weapon has been shown to have been recovered from possession of the applicant, therefore, application of section 397 P.P.C is yet to be established by the prosecution after recording evidence of its witnesses and then the trial Court has to determine the same; besides, the offence is un-witnessed one. Hence, the case of applicant does not fall within ambit of prohibitory clause of Section 497 Cr.P.C.
7. In the circumstances and in view of above legal position, case against applicant is purely covered by subsection (2) to section 497 CLP C, Consequently, instant bail application is hereby allowed; applicant Ismail son of Shah Balchti Rawan, shall be released on bail subject to furnishing his solvent surety in the sum of Rs.100,000/- (Rupees one lac Only) and PR Bond in the like amount to the satisfaction of learned trial Court/2nd Civil Judge and Judicial Magistrate, Karachi (West), as the case may be.
8. It need net to iterate that the observation(s) made hereinabove is/are tentative in nature and shall not prejudice the case of tither party during trial. However, the learned trial Court may proceed against the Applicant, if he will be found misusing the concession of bail.
This Criminal Bail Application is disposed of in the terms indicated above.