MUHAMMAD SALEEM JESSAR, J. By this common order, I intend to dispose of these Bail Applications bearing Nos. 1186 and 824 of 2024 as both arise out of one crime bearing No.59 of 2024 registered at P.S Surjani Town, Karachi for offences under Sections 394, 396, 302, 412 and 34m P.P.C. Applicant Muhammad Imran was arrested on 14.02.2024; whereas, applicant Ubaid was arrested on 12.02.2024. Interim challan of the case was filed on 13.06.2024 which is still pending for preliminary proceedings before the Judicial Magistrate in terms of dicta laid down by Hon'ble Supreme Court of Pakistan in case of Muhammad Ramzan v. Rahib and others (PLD 2010 SC 585). The applicants after their arrest, attempted to prefer their bail plea before the Court of first jurisdiction which was declined by means of a common order date 28.03.2024; hence, these bail application(s) have been maintained.
2. The crux of the prosecution case are that complainant Patch Muhammad got registered instant FIR on 15.01.2024 alleging therein that he along with his son Faiz Muhammad (deceased), cousin and nephew gone to attend marriage ceremony of one of his department's colleague, meanwhile, they-were intercepted by two outlaws duly armed with deadly weapons. On force of weapons, culprits snatched a touch screen mobile phones having IMEI numbers along with SIMs; however, son of complainant namely Faiz Muhammad got hold one of the culprits while others had made straight fires upon his head which became through and through from his ear. Hence, instant FIR was lodged.
3. Learned counsel for the applicants submit that names of the applicants are not mentioned in the FIR nor they were subjected to identification parade after their arrest. They submit that father of applicant Ubaid namely Muhammad Aslam filed an application under Section 491, Cr.P.C, on 12,02.2024 before the Court of Sessions Judge, Karachi (West) stating therein that applicant Ubaid had been taken away by the police of Surjani Town, Karachi on 04.02.2024. On filing of that application, applicant Ubaid was shown arrested by the police on same date; whereas, one Laila Khatoon wife of Ghulam Raza as well as Muhammad Bilal, father of applicant Muhammad Imran moved an application to SHO, P.S Surjani Town, Karachi on 12.02.2024 contending therein that Ghulam Raza, Abid Hussain and Muhammad Imran were taken away by the police and after issuance of notice to them, they have shown him arrested on 14.02.2024. They further submits that main culprit of robbery as well as murder of son complainant namely Shahzad and Akasha were arrested by the police on 25.02.2024 and later were subjected to identification parade before the Magistrate having jurisdiction on 27.02.2024 through which it could be deduced that complainant as well as witnesses had rightly picked them up during the investigation. Crime weapon was also recovered from one accused Shahzad.
4. Learned counsel further submit that as far as involvement of applicants is concerned, per challan one Naimatullah had sent seven mobile phones to the police concerned via TCS from Quetta and upon statement of said Naimatullah above cellphones have been shown recovered from applicant Ubaid who allegedly runs a mobile sell, and purchase shop in the Karachi. As far as, nexus of applicant Muhammad Imran is concerned, both have been involved upon the basis of CDR collected by the police and in their last, learned counsel submit and refer to challan of the case which reveals that person namely Naimatullah who sent mobile phones from Quetta to police and subsequently foisted upon applicant Ubaid was not made as an accused or witness of the crime. Learned counsel places on record a copy of FIR bearing No.202 of 2024 registered with PS Surjani Town, Karachi for offences under Sections 411, 34, P.P.C and submits that all above cellphones allegedly have been shown, were not recovered from exclusive possession of applicant Ubaid, taken on record. Hence, submit that case against applicants requires further inquiry and pray for their release on bail.
5. On the other hand, learned Addl. P.G, Sindh appearing for the State opposes the applications on the ground that all mobile phones have been shown to have been recovered from them; besides, the offence with which applicants have been charged, carries maximum punishment, hence, they are not entitled for the bail. Learned Addl. P.G. Sindh; however, is not in position to controvert the fact that person Naimatullah who sent mobile phones to police via TCS was not made as witness or the accused in this case even he had not been examined by the I.O under Section 161, Cr.P.C.
6. Learned counsel for the complainant also opposes the bail application on the ground that offence with which they have been charged, carries maximum punishment; besides, recovery of robbed articles has been shown to have been effected from them, therefore, they are not entitled for the bail. He also went on to say that section 34 has been added and by virtue of main case, they are also liable to be prosecuted; hence, bail applications in hand merit no consideration and prays for dismissal. In support of his contention, learned counsel places reliance upon case of Abdul Rasheed alias Sheeda v. The State (1985 SCMR 1778 [1]) as well as unreported orders dated 31.01.2017 and 18.09.2023 passed by this Court.
7. Heard arguments, record perused. Admittedly, names of the applicants are not mentioned in the FIR; however, they have been shown involved in the case on the basis of CDR as well as cellphones allegedly recovered from applicant Ubaid. Per challan, the police have specifically mentioned that one Naimatullah disclosed on telephone that he had been using robbed phones which he purchased from applicant Ubaid and later he sent all the cellphones to police through TCS and per record as well as investigation, all recovered cellphones are not the case property of crime No.59 of 2024. The person Naimatullah who dispatched cellphones through TCS to police, was not made as an accused or witness to the proceedings even I.O did not record his 161, Cr.P.C statement. The cellphones shown to have been recovered from applicant Ubaid were not recovered from exclusive session of the applicants but were sent by Naimatullah from Quetta who has not been made as accused in this case or the witness.
8. The legal question is that when a person who retains or receives stolen/robbed property in his possession, is to be prosecuted in terms of Sections 411/412, P.P.C and the person who retains alleged property in his possession and subsequently sent to police via TCS namely Naimatullah had not been made as an accused or witness in this case. The main thing in this case is that cellphones allegedly robbed from the complainant party at the time of offence had not been recovered from applicants. As far as punishment provided by the law for Section 412, P.P.C is concerned, it provides two punishments; one up to life imprisonment and other may extend to 10 years. Separate FIR bearing No.202/2024 has also been registered by the police for same charge and the prosecution if after recording evidence, may succeed to prove its charge against them, they will be punished according to law. At this juncture, cellphones shown to have been recovered, are not the case property of Crime No,59/2024, Since nothing incriminating or cellphone allegedly robbed away from possession of the complainant of instant case, has been secured from possession of the applicants; however, seven cellphones recovered from one Naimatullah which have been recovered from applicant Ubadi are not the case property of instant crime; hence, have got no nexus or connectivity with commission of present offence. All above seven cellphones are strangers to this crime even it has not been brought on record as to when and from whom the same were snatched away. Mere foisting of certain articles/incriminating is not sufficient to connect an individual with the crime unless specifically shown involved in any criminal case. Since nothing incriminating pertaining to this crime has been shown recovered from the possession of the applicants, therefore, law relied upon by counsel for the complainant has got no relevancy as the facts and circumstances of present case are different and distinguishable from the cases cited at the bar and are not helpful for the prosecution. As far as, CDR is concerned, prosecution has not recovered cellphones from either side along with SIMs through which it could be deduced that same were used by the accused while making conversation with each other. If contents of Investigation Officer to the extent of CDR may be presumed to be true even then it requires lot of evidence which is yet to be adduced by the prosecution at the time of trial before the trial Court and then the trial Court has to determine its veracity.
9. In view of above legal position, case against applicants requires further inquiry within meaning of subsection (2) to section 497, Cr.P.C. Consequently, both bail application are hereby allowed.
Applicants Muhammad Imran son of Muhammad Bilal and Ubaid son of Muhammad Islam shall be released on bail subject to furnishing their solvent surety in the sum of Rs.100,000/- (Rupees One Hundred Thousands Only) each 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 applicants are found misusing the concession of bail, learned trial Court would be competent to proceed against them as well as their surety, in accordance with law.
II. Both Criminal Bail Applications are disposed of in the terms indicated above.
Office to place a copy of this order in the connected bail application. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.