' Applicant Muhammad Suleman Dahri, who is detained in Crime No,189 of 1991, Frere Police Station Karachi, initially registered under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, which after the death of Muhammad Ayub, a Security Guard was convicted under section 17(4) of the Offences Against Property (Enforcement of Hudood)
Ordinance, 1979, applied for bail before learned Sessions Judge (South) Karachi, but without success. He has, therefore, approached this Court with the same prayer.
2. On 10-10-1991 at about 11-20 a.m. There was an armed dacoity in Habib Bank Ltd., Club Road Branch, Hotel Metropole Building, Karachi committed by seven persons who looted Rs,7,86,651 (subsequently corrected as Rs,8,36,151), and while doing so broke the gun belonging to Asmat Ali Khan, Bank Guard, when he offered resistance. Complainant Maqbool Ahmad Jilani, Manager of the Bank found an opportunity and he pushed the alarm, which freightened the culprits who started running. Out of the seven culprits four escaped on two motor-cycles, while the remaining three rawort'foot. The police officials posted outside the bank tried to apprehend the culprits, who opened fire by means of T.T. Pistols, causing injuries to Ali Muhammad P.C., Noor Ahmad P.C., deceased Muhammad Ayub, a Security Guard, and Tahir Hussain, a passerby. On the same day at 12-25 p.m., 154, Cr.P.C. Statement of Maqbool Ahmad Jilani, Manager was recorded which was subsequently incorporated in 154, Cr.P.C. Book. During the course of investigation the police arrested the applicant on 15-10-1991 at 2-10 p.m. Near Zardari House, .Clifton, Karachi, and from his possession the motor-cycle used in the dacoity was recovered. On 22-10-1991 the applicant was put to identification test through Maqbool Ahmad Jilani, Manager, Hussain Ali, Head Cashier, and Asmat Ali Khan, Bank Guard who failed to identify him. The applicant was, however, picked up correctly by Muhammad Nazeer H.C., Noor Ahmad P.C., and Abdul Rashid P.C. On the same day the applicant was produced before A.C.M., C.I.A., Karachi, who recorded his judicial confession. After usual investigation the applicant was sent up to stand trial.
3. I have heard Mr. Rashid A. Rizvi, learned counsel for applicant and Mr. Shoukat H. Zubedi, learned AA.-G. For State. The latter has opposed the bail application by stating that the applicant was picked up in an identification test held on 22-10-1991 under the supervision of A.C.M., C.IA. Karachi, by Muhammad Nazeer H.C., Noor Ahmad, P.C. And Abdul Rashid P.C.
4. Mr. Rashid A. Rizvi, learned counsel for applicant has with great energy put before me reasons for disbelieving the case of prosecution against the applicant and has endeavoured to show that the circumstances are not inconsistent with a plot having been formed to fasten the guilt upon the applicant at the instance of police officials.
5. The offence under section 17(4) of the Offences Against Property (Enforcement of Hudood)
Ordinance, 1979, falls within the prohibitory clause of section 497, Cr.P.C. In order to find out whether there are reasonable grounds to believe that the accused is guilty for the offence with which he is charged the Court has only to look into the evidence that is, collected by the police, or is otherwise available on record.
6. There are, however, certain facts and circumstances in this case which are either not in dispute or they emerge out from the record. These are:--
(i) The name of the applicant is not disclosed in F.I.R.
(ii) The features and description of the applicant also do not find place in F.I.R.
(iii) The applicant is said to have been arrested by Muzaffar Khan Inspector, C.IA., Karachi on 15-10- 1991 at 2-10 p.m.
(iv) There is affidavit of Mr. Rasool Bux Palejo, Advocate-on-Record to show that the applicant was in fact arrested from Shandadpur on 13-10-1991 from where he was taken to C.IA. Centre, Karachi.
(v) There is evidence on record to show that Mr. Rasool Bux Palejo, Advocate had sent a telegram to Honourable Chief Justice, High Court of Sindh and 7 others making complaint about the wrongful detention of the present applicant, which was flashed from Hyderabad on 15-10-1991 at 1-50 p.m.
Before the actual arrest of the applicant was shown.
(vi) The Honourable Chief Justice converted this telegram in a petition under section 491, Cr.P.C.
Being Criminal Miscellaneous No,432 of 1991, by his order dated 16-10-1991.
(vii) The identification test of the applicant was held on 22-10-1991 with no plausible explanation of delay.
(viii)All the three natural witnesses, viz. Maqbool Ahmad Jilani, Manager, Hussain Ali, Head Cashier, and Asmat Ali Khan who had seen the culprits from a close distance had not identified the present applicant as one of the culprits.
(iv) The three police officials, namely, Muhammad Nazeer H.C. Noor Ahmad, P.C. And Abdul Rashid P.C. Who has only seen a momentary glimps of the culprits from a distance while running away, identified the applicant.
(x) The applicant was all along in police custody till the identification test was held and the possibility that Muhammad Nazeer H.C. Noor Ahmad, P.C. And Abdul Rashid P.C. Who are all police officials had seen the applicant in police lock-up before the actual test was held cannot be ruled out.
(xi) The identification that was held without mixing dummies with the applicant and observing other formalities and memos. Of identification test simply suggest that the applicant was shown to the witnesses.
()di) No recovery of cash or a part thereof was made from the applicant.
(xiii) The recovery of motor-cycle alleged to have been used in the commission , :f this offence is rendered doubtful from the affidavit of ' Mr. Rasool Bux Palejo, Advocate, which disclosed that the applicant was in fact arrested from Shandadpur on 13-10-1991.
(xiv) The udicial confession recorded on the same day when the identification test was held is self- exculpatory and there is not a word in it connecting the applicant or any one else with this crime.
(xv) The judicial confession makes it clear that the applicant is working as Manager at the Agriculture and Fruit Farm of Mr. Hakim All Zardari, M.N.A.
7. It may be noted that while considering the question of bail all the circumstances attending to a particular case should be considered and bail cannot be refused merely on a single circumstance, like the one in this case viz., the alleged use of motor-cycle belonging to applicant in this dacoity.
Mr. Rashid A. Rizvi, learned counsel for applicant has tried to meet this allegation also by contending that no person possessed of his senses would commit a dacoity on a motor-cycle which is registered in his own name. There is good deal of force in this observation, and from the circumstances mentioned in para. 6 ante, I am satisfied that there are reasonable grounds to believe that the applicant is not guilty for the offence with which he is charged and the case against him needs further inquiry within the meanings of subsection (2) of section 497, Cr.P.C.
Accordingly bail is granted to applicant in the sum of Rs,1,00,000 (Rs, one lac) with P.R. Bond in the same amount.
8. By a short order dated 26-2-1992 I had granted bail to applicant and these are reasons for the said order.