1. ' By this common order, I propose to dispose of Bail Application Nos.183 of 1998 and 184 of 1998 filed by the applicant Syed Asif Ahmed son of Syed Mustaqeem in Crimes Nos.294 of 1998 and 295 of 1998 respectively registered at the Police Station Bufferzone, Karachi on 5-7-1998.
2. ' Briefly stated the facts of the F.I.R. No,294 of 1998 lodged by the complainant Syed Nadeem Ahmed on 5-7-1998 at 4-00 p.m. At Bufferzone Police Station, Karachi are that he has a video shop at Shadman North Karachi. He owns a motorcycle No,240 KCW 7- CC. On 5-7-1998 at 15-30 hours he saw three boys in suspicious circumstances in the street and brought this fact to the notice of his neighbour Nasir Ahmed son of Sher Muhammad. The complainant further told him that the boys seemed to be armed. The complainant then stopped them and enquired from them as to who were they and wherefrom they had come. These boys then took out their pistols and on pistol point robbed the aforesaid motorcycle of the complainant, who then lodged the F.I.R. In terms material particulars whereof are given above.
3. ' The facts of the other F.I.R. No,295 of 1998 lodged by one Suleman Habib son of Muhammad Ashraf Khan on the same day at 4-45 p.m. Are that he was going on motorcycle No,GAA-1404 Honda 110- CC, with his friend Muhammad Nadeem to Clifton to meet some of his friends. When they reached near Farooq Azam Mosque three motorcyclists who were on motorcycle No,KCW-249 stopped them on point of pistol and robbed the motorcycle of the complainant, who then lodged F.I.R. No,295of 1998 at 4-45 p.m. In above terms.
4. ' The applicant/accused was arrested by the Police on the same day at 10-00 p.m. And he was challaned separately in both the cases.
5. ' The applicant/accused applied to the learned Trial Court for bail but by the order dated 17-1-1998 the learned Trial Court rejected both the applications by two separate orders.
6. ' The learned counsel for the applicant/accused has contended that the name of the applicant/accused does not transpire in both the F1Rs, and that he has been falsely involved in the case. The alleged recoveries of motorcycles are false inasmuch as, no numbers of engine, chassis and other particulars of the motorcycles have been mentioned. On the point of identification, the learned counsel has contended that, there is a delay of five days in holding the identification test and that the case of applicant/accused requires further enquiry and that he is, therefore, entitled to bail under clause (2) of section 497, Cr.P.C. The learned counsel in support of bail plea, has relied upon the cases reported in 1994 PCr.LJ 1756, 1993 PCr.LJ 2120, 1994 PCr.LJ 563 and 1993 PCr.LJ 726.
7. ' On the other hand, Mr. Ashiq Hussain Mehar, learned counsel for the State, vehemently opposed the bail applications and contended that the both F.I.Rs, have been lodged by complainant's promptly and both the complainants have neither any personal grudge nor enmity with the applicant/accused. He has further pointed out that the applicant/accused was arrested on the same day by the concerned Police at 10-00 p.m. And one T.T. Pistol of .30 bore with three live bullets and robbed motorcycle was recovered from him. The learned counsel for the State, has argued that there was proper identification test of the applicant/accused, and in the identification parade complainant party identified the accused, as such prima facie, case of robbery punishable under section 17(3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979 has been prima facie made out against him and he is not entitled to bail at this stage, as no evidence has so far been recorded in both the cases.
8. ' I have heard Mr. Muhammad Aziz Khan, learned counsel for the applicant/accused and Mr. Ashiq Hussain Mehar, learned counsel for the State and have gone through the F.I.Rs, and orders of the Trial Court and also perused the Police papers of both cases with the assistance of learned counsel.
9. The perusal of both the F.I.Rs, reveal that the complainants lodged these F.I.Rs, without any loss of time. The F,I.R. No,294 of 1998 was lodged within half an hour of the incident while F.I.R. No,295 of 1998 was also lodged within half an hour of incident. The applicant/accused does not allege any personal grudge or enmity with any of the complainants as to why they have involved him. The applicant/accused has been arrested on the same day viz. 5-7-1997 at 10-00 p.m. While he and two other boys namely Muhammad Ayaz Qureshi and Zulfiqar were going on two robbed motorcycles, who seeing the police party tried to run away but they were apprehended by the Police. There is also recovery of one T.T. Pistol of .30 bore with three live bullets from the applicant/accused. There is also evidence of identification against the applicant/accused which is in proportion 9 to 1. Looking towards the peculiar facts and circumstances of present case, merely delay of five days in holding the identification parade will not entitle the applicant/accused to bail on this ground, at this stage.
10. ' The applicant/accused appears to be a habitual robber of the motorcycles. There are two incidents of robbery of motorcycles on one and same day and in both the F.I.Rs, three culprits have robbed motorcycles on the point of arms. The Mashimama dated 5-7-1997 showed that three persons were arrested by the police who were going on two motorcycles which were robbed from the complainants on 5-7-1997 including the applicant/accused.
11. ' There is prima facie enough circumstantial evidence against the applicant/accused connecting him with robbery of both the motorcycles. Merely non-mentions of engine or chassis numbers of the motorcycles by the complainant's will not entitle the applicant/accused to the grant of bail.
12. Under the above circumstances, I am of the view that there are reasonable grounds to believe at this stage that the applicant/accused is prima facie guilty of the offence alleged aginst him.
13. ' The case-law cited by the learned counsel for the applicant/accused is of no help to him and it is distinguishable, both on the facts as well as law and it is not applicable to the facts of the present case.
14. ' In case of Zahid Mehmood v. The State reported in 1993 PCr.LJ 2120 Heroin was not recovered from physical possession of the accused as the same was stated to have been thrown away by him at the spot. Therefore, the question was whether the recovery of said heroin was effected from the house or from the street therefore, it was held that it will be determined by Trial Court after recording evidence.
15. ' In case of Muhammad Suleman Dahiri v. The State reported in 1993 PCr.11 726 accused allegedly committed dacoity on a motorcycle which was registered in his own name, date and place of arrest of accused was doubtful. The identification parade was not only belated by 12 days but it was unsatisfactory. No recovery of cash or part thereof was made from accused. There was affidavit of Mr. Rasool Bux Palejo, Advocate on record to show that accused was in fact arrested from Shandadpur on 13-10-1991 and not on 15-10-1991 at 2-10 p.m. At Karachi. Mr. Palejo, Advocate had sent telegram to Honourable Chief Justice High Court of Sindh and 7 others making complaint about the wrongful detention of accused from Hyderabad on 15-10-1991 at 1-15 p.m. Before the time of arrest shown by Police. Honourable Chief Justice had converted telegram in Criminal Miscellaneous No,432 of 1991. All the P.Ws. Win had seen the culprits from close quarters had not identified the accused and identification parade was held without missing dummies with accused and confession was also exculpatory.
16. ' In case of Akhtar Hussain v. The State reported in 1994 PCr.LJ 563, allegation against the accused was that he fired but no empty was recovered from the spot, none of the inmates of the house received injuries and accused was arrested after 12 days of the incident whereas present applicant/accused was arrested on the same day.
17. ' In case of Muhammad Hafeez and another v. The State reported in 1994 PCr.LJ 1756 the memo. Of identification parade was not signed by the Magistrate on the day of identification parade but after 3 days of the holding of identification parade, whereas in case in hand no such thing has happened.
18. For all the reasons stated above, I see no merit in both the bail applications, which are dismissed.
19. ' The observations made hereinabove are of tentative nature and the Trial Court will not be influenced thereby in any way and it will be free to conclude and arrive at its own findings after evidence in both the cases is recorded.