Applicants Syed Atiq-ul-Hassan and Arshadullah Khan, who are detained in Crime No.33 of 1991, Korangi Police Station, under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, sections 353 and 307, P.P.C. Applied for bail before learned Sessions Judge (East) Karachi, but without success. They have now approached this Court with the same prayer.
2. I have heard Mr. M.M. Aqil, learned counsel for applicants and Mr. Shaukat H. Zubaidi learned A.A.- G. For State. The latter has opposed the bail application.
3. It is a case of daring armed dacoity committed in the house of PW Merajuddin after a threat to kill his son was given and it is alleged that after frightening the inmates of the house the culprits robbed Merajuddin of cash and ornaments valued at Rs.20,000. The perusal of the record also shows that as soon as the culprits left the house of PW Merajuddin an alarm was raised which attracted the police party and after an exchange of firing in which nobody was hurt, applicants Syed Atiq-ul-Hassan, Arshadullah Khan and co-accused Farid Khan were arrested, while the remaining accused, namely, Aziz alias Chacha, Shafique and Hafeez-ur-Rehman's alias Fajoo was successful in running away. It is also the case of the prosecution that the cash of Rs.10,000 and one golden necklace were recovered from the possession of applicant Arshadullah Khan and a revolver of .30 bore with 5 live bullets were recovered from the possession of the applicant Syed Atiq-ul- Hassan. There is, therefore, satisfactory evidence on record connecting both these applicants with this crime. Both of them were caught on the spot and besides the robbed articles an unlicensed revolver was recovered from the possession of applicant Syed Atiq-ul-Hassan. Under these circumstances even it is accepted for the sake of arguments that no case under section 307, P.P.C.
Is made out against these applicants, there is still evidence of armed dacoity which too falls within the prohibitory clause of section 497, Cr.P.C., and the learned counsel for applicants in spite of his strenuous arguments was not able to bring the case out of this clause.
4. Mr. M.M. Aqil, learned counsel for applicants has also contended with force that two of the accused, namely, Hafeez-ur-Rehman's alias Fajoo and Farid Khan are on bail granted by the police and consequently, the rule of consistency demands that the present two applicants may also be enlarged on bail. He has placed reliance upon the case of Muhammad Fazal alias Bodi v. The State reported in 1979 SCMR 9. The perusal of the record and the order of the learned Sessions Judge makes it clear that co-accused Farid Khan and Hafeez-ur---Rehman's alias Fajoo were released on bail due to intervention of Mr. Muhammad Naim Akhtar, Member, Provincial Assembly of Sindh and this order was not passed on merits by any Court, and I will be going a little too far if the rule of consistency is stretched in favour of applicants on the basis of the order passed by the police.
5. It is also the case of the applicants that three witnesses namely, Muhammad Rafique, Abdul Ghani and Muhammad Nasir have sworn their affidavits thereby exonerating the applicants. All these persons do not figure as eye-witnesses and therefore, filing of these affidavits in no way helps the applicants or makes out a case of further inquiry within the meaning of subsection (2) of section 497, Cr.P.C. Complainant Allauddin and his son Merajuddin have fully implicated the applicants and their evidence is further supported from the recovery of robbed articles and crime weapon from their possession.
6. Having regard to the above circumstances, I am of the view that there are reasonable grounds to believe that the applicants are involved in a case falling within the prohibitory clause of section 497, Cr.P.C. There is no force in the present bail application, which is accordingly dismissed.