1. This application for bail is filed on behalf of the applicant/accused Mubin A.I Siddiqui, who has been challaned in Crime No.123/94 under section 399/402/353, P.P.C. Read with section 324 of Qisas and Diyat Ordinance, 1991, alongwith co-accused Syed Muhammad Ejaz and Izhar Ahmed registered at P.S. North Nazimbad, Karachi.
2. Brief facts, as stated in the F.I.R. No. 123/94, are that on 26-5-1994 S.H.O. Of Police Station North Nazimabad was patrolling the area alongwith his subordinate staff, when he received spy information that five persons have assembled alongwith deadly weapons in order to commit dacoity. As such he reached at the pointed place. On seeing Police party accused persons opened fire and after brief exchange of fire police arrested three out of five. On personal search, one T.T.
3. Pistol of 30 bore alongwith five live cartridges was recovered from accused Syed Muhammad Ejaz, one T.T. Pistol of .32 bore loaded with 6 live cartridges was recovered from Mubin A.I Siddiqui and one T.T. Pistol of .32 bore loaded with 5 live cartridges was recovered from Izhar Ahmad two of the accused persons whose names later on transpired to be Fahim Farooqui alias Commando and Sami son of Hameedullah, ran away in a Taxi No.PH-4527 while the three accused, mentioned above, were arrested in presence of the witnesses Shahid Iqbal son of Noor Ahmed and Choudhry Muhammad A.I son of Chaoudhry Muhammad Ismail. The accused moved bail application before the learned Sessions Judge, Karachi Central, which was rejected on 7-7-1994, against which present application is made.
4. I have heard Mr. Muhammad Iqbal, learned counsel for the applicant/accused and Mr. S. Amjad A.I Shah, learned A.A.-G for the State.
5. Learned counsel for the applicant contended that the accused/applicant has been falsely implicated in this case due to enmity with the police and has further stated that the applicant/accused was not arrested on 26-5-1994, but was arrested on 25-5-1994. According to him, the F.I.R. Was lodged after his arrest. It is further contended by the learned counsel for the applicant that the applicant/accused had levelled allegations against the police, as such a false case has been registered against him. In support of his contentions he placed reliance on a case Hatim and others v. The State, 1994 PCr.LJ 900, in which it was held:-- "Bail, grant of--No evidence was available against accused for having committed any offence punishable under S. 398/399, P.P.C.---Prosecution had not opposed the bail application---Case against accused being covered under S. 497(2), Cr.P.C. Needed further inquiry----Accused were released on bail in circumstances."
6. He has further relied on Amir A.I Khan v. The State, 1994 PCr.LJ 576, in which it was held: "Contention that assembly of five armed persons by itself would not constitute preparation for dacoity and, therefore, case required further inquiry had force---Accused was enlarged on bail accordingly."
7. He has also referred to Yameen Kumhar v. The State, PLD 1990 Karachi 275, wherein it was held: "Recovery---Provisions of S. 103 applicable to search and arrest made during investigation of a crime are mandatory but not absolute and its non-compliance in certain circumstances will not render search and recovery illegal witness---Picking up Mashirs and taking them to the place of Wardat clearly proves that Investigating Officer had procured those persons prior to recovery to witness the occurrence. Such mode of witnessing the recovery will be improper even if such collected persons were residents of the locality."
8. Further reliance was placed on Shameer and others v. The State, 1989 PCr.LJ 1256, in which it was held: "Accused found assembled--No evidence showing purpose of assembly to commit dacoity-- Assembly of accused simpliciter without any intention to commit offence punishable under S. 402."
9. He has further referred to Muhammad Ramzan alias Janon v. The State, 1991 PCr.LJ 2275, wherein it was observed: "Benefit of doubt---Accused person being favourite child of law, was entitled to benefit of slightest doubt not as a matter of course or concession, but as a matter of right. "
10. Lastly, learned counsel for the applicant/accused placed reliance on Abdul Wahid v. The Stxte, 1993 PCr.LJ 2254, in which it was held: "Bail, grant of---Material available with prosecution did not show that the accused had made any preparation for committing dacoity as contemplated by S.399, P.P.C.---Accused was admitted to bail in circumstances."
11. Mr. S.Amjad A.I Shah, the learned A.A.-G. Has conceded to the grant of bail to the applicant/accused.
12. I have perused the record and have also perused the rulings quoted by the learned counsel for the applicant.
13. The applicant/accused has been challaned and the case has not proceeded as yet. It is too early too appreciate the evidence at this stage. On the other hand, as stated, all the five accused were preparing and had assembled to commit dacoity and on seeing the police party they started firing on them and the police party also fired in their defence, and after brief exchange of firing two of the accused Faheem Farooqui alias Commando and Sami son of Hameedullah ran away in a taxi while the preset applicant accused alongwith the two other accused was arrested at the spot in presence of the two private Mashirs, namely, Shahid Iqbal and Choudhry Muhammad A.I. As stated above, on their personal search T.T. Pistols with live cartridges were recovered specially from the possession of the present applicant/accused on T.T. Pistol of .32 bore bearing words Lmaval, made in Spain alongwith six live cartridges was recovered for which the applicant/accused had no licence. The citations, quoted above, have no bearing with the present case and are very much distinguishable with the facts of this case. The other points, raised by the learned counsel for the applicant/accused, are matter of evidence and until evidence is recorded it cannot be determined as to whether accused/applicant was arrested on 25-5-1994 or on 26-5-1994. Provisions of section 399, P.P.C. Contemplates a general design to commit dacoity or to engage in an expedition for that purpose, though plans of dacoity are not matured. Court has to satisfy itself that accused had decided upon committing dacoity and that they were making preparation. Cases of dacoity are increasing day by. Day and looking to the present law and order situation in the city where such type of incidents have become daily business and such offences are being committed on the road as well as inside the houses and citizens are not safe from the hands of the culprits and if they are not checked by the Court there will be no end to it.