MUHAMMAD SALEEM JESSAR, J. Through this bail application, applicant Lal Muhammad seeks his release on post arrest bail in Crime No.19 of 2023 of P.S Gulshan-e-Maymar, Karachi, under Sections 394, 397 and 34, P.P.C. The ease has been challaned which is now pending for trial before the Court of 7th Addl. Sessions Judge, Karachi (West) vide Sessions Case No.2544 of 2023 (re-The State v. Lal Muhammad and others). The applicant filed bail application before the trial Court which by means of order dated 27.05.2024 was declined; hence, instant bail application has been maintained.
2. The crux of the prosecution case are that complainant Khadim Hussain along with his friend namely Allah Dino was intercepted Sanol Cutt Northern Bypass, Gulshan-e-Maymar, Karachi by two motorcyclists who snatched cash of Rs.20,000/- as well as Vivo mobile phone together with SIMs 0305-3451869 and 0335-3781983 from Allah Dino ant on resistance, they fired upon the complainant, hence, he sustained injury on his person. After getting medical treatment, he got registered the FIR in the above terms.
3. Pursuant to directions contained under previous order, learned trial Court has submitted progress report dated 13.08.2024, which reveals that charge against accused has been framed; however, complainant had not been appearing, therefore, coercive process in shape BWs has been ordered to be issued against him as well as other witnesses.
4. The complainant, inspite of notice, has chosen to remain absent.
5. Learned counsel for the applicant submits that applicant was arrested by the police on 14.05.2023 as suspicious; however on 15.05.2023, he was shown arrested in this case. On 23.05.2024 he was subjected to identification parade where complainant allegedly picked him up; hence, the case has been challaned. As far as robbed articles as well as cash is concerned, leatned counsel submits that nothing has been shown to have been recovered from him, hence, case against applicant requires further inquiry. He, therefore, prays for his release on bail. In support of his contention, learned counsel places reliance upon the cases of Irfan and another v. The State and another (2018 YLR 85) and Muhammad Idrees v. The State (2023 MLD 1972).
6. On the other hand, learned Addl. P.C. Sindh. appearing for the State, opposes the bail application on the ground that offence is heinous one; besides, accused was picked up by the complainant as well as PWs before the Magistrate concerned at the time of his identification parade; hence, he is not entitled for the bail. He; however, could not controvert the fact that identification parade was held on 23.05.2024 i.e. some 10 days later from his arrest.
7. Learned Addl. P.G, Sindh further submits that applicant had allegedly used the SIM of robbed phone for about three months. On a query being asked by the Court, he admits that the robbed phone belonging to complainant party, allegedly used by the applicant, for the period, was not recovered from his possession.
8. Heard arguments, record perused. Admittedly, the incident allegedly had occurred on 21.01.2023; however, FIR was got registered on 22.01.2023 against unknown persons. After about five months, the applicant was arrested and later was subjected to identification parade before the Magistrate on 23.05.2023 i.e. with a delay of about 10 days. Though the applicant has been shown to have been picked up by the complainant as well as witnesses at the time of his identification parade; however, that was held after., about 10 days. In such a situation, when identification parade was held, with an unexplained delay, said piece of evidence loses its authenticity. As far as, contention of learned Addl. PC, Sindh that applicant allegedly used the robbed phone for three months, is concerned, neither the robbed phone nor his own (cellphone) has been shown to have been recovered from his possession through which it could be deduced that applicant was the person who allegedly used his phone, as alleged. Two more accused namely Wali Muhammad and Fir Muhammad are absconding. The injury allegedly sustained by the complainant has been declared to be punishable under Section 337-F(ii), P.P.C. which carries maximum punishment up to three years; whereas, the Sections 394 and 397, P.P.C. also carry punishment of four years as well as seven years respectively, thus does not exceed limits of prohibitory clause of section 497, Cr.P.C.
9. In the circumstances and in view of citations relied upon by learned counsel for the applicant, case against applicant requires further inquiry within meaning of subsection (2) to Section 497, Cr.P.C. Consequently, instant bail application is hereby allowed. Applicant Lal Muhammad son of Noor Muhammad 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.
10. It may be pertinent to mention here that the observation(s) made hereinabove is/are tentative in nature and shall not prejudice the case of either party during trial. However, if the applicant is found misusing the concession of bail, learned trial Court may proceed against him.
11. This Criminal Bail Application is disposed of in the terms indicated above.