' I propose to dispose of both these bail applications i.e, Criminal Bail Application No,999 of 1998 and Criminal Bail Application No,1002 of 1998 by this single order as both arise out of the same F.I.R.
2. The facts leading to present applications for bail are that applicants/accused Ahmad and Ali Mardan are facing trial in Sessions Case No,179 of 1998 before Vth Additional Sessions Judge, Karachi South, arising out of F.I.R. No,12 of 1998 of Police Station Darakhshan Karachi under sections 395 and 34, P.P.C.
3. The brief facts of the prosecution case as stated in the F.I.R. Lodged by Muhammad Irshad are that complainant is serving as a driver with one Seth Mustafa Memon. At about 7-15 p.m. While complainant was parking car, six persons duly armed with fire-arms entered in the house. They overpowered the complainant and cook Ghulam Nazir and tied their hands on 'the back side. Out of them three culprits went on the roof of the bungalow where wife of their employer was reciting the 'Holy Qur'an'. They brought her at ground floor and asked her to unlock the room. She opened the ,door due to fear of fire-arms. Accused then took away golden ornaments, V.C.Rs,, Dish Receivers, Camera, Video Camera, Watches, Deck, Tape Recorder in the car of his employer. The accused appeared to be Sindhis. Seth Mustafa Memon the employer of the complainant was abroad for performing 'Umra'.
4. Both the applicants/accused applied for bail before trial Court by way of separate bail applications. The bail plea of applicant/accused Ahmad was refused on 20-8-1998 whereas that of applicant/accused Ali Mardan was refused on 10-8-1998. Both these orders have been Impugned before this Court.
5. I have heard the learned counsel for the parties and Mr. Muhammad Ismail Memon learned counsel for A.-G. For the State. The latter opposes the grant of bail.
6. The contention of the learned counsel for the accused that the names of applicants/accused do not transpire in the F.I.R. That no identification test was held after their arrest; that the recovery was made in disregard of provisions of section 103, Cr.P.C. And that it cannot be believed: that the applicant/accused Ahmad was a Police Constable posted at Governor's House; thus, the case necessitates further enquiry and applicants/accused are entitled to bail are misconceived.
7. On 10-4-1998 applicant/accused Ali Mardan was arrested and from his personal search three robbed golden bangles and a T.T. Pistol with loaded magazine containing four live bullets used by him in the commission of offence were recovered in presence of Mashirs P.C. Muhammad Umer and one private person namely Fayaz Ahmad.
8. On 23-4-1998 applicant/accused Traffic Police Constable Ahmad was arrested and from his personal search one golden bangle was recovered in presence of witnesses.
9. The recovery of robbed property from applicants/accused prima facie, suggests culpability of the applicants/accused under section 412, P.P.C. Which is punishable with imprisonment for life or ten years and fine.
10. Admittedly the applicants/accused ere not personally known to complainant party, the description of their eminent features was given in the F.I.R. The identification test of accused was held before Judicial Magistrate on 20-4-1998 and both eye-witnesses i.e, complainant Muhammad Irshad and P.W. Ghulam Nazir correctly picked them out in the said test.
11. Looking to the facts and peculiar circumstances of this case, prima facie, no violation of section 103, Cr.P.C. Is made out. The statement of police men cannot be discarded at this stage as a policeman is as good a witness as any other person untill and unless evidence is brought on record to discredit him.
12. The applicant/accused Ahmad is a police constable and he is involved in dacoity alongwith other co-accused. The duty of the police is to protect the people from the bandits and outlaws but unfortunately in this case prima facie the protector of law and order has himself violated it.
13. The authorities Dildar v. The State (1995 PCr.LJ 1993), Muhammad Umar and another v. The State (1996 SD 482), Muhammad Rafique v. The State (1996 SCJ 490) cited at Bar, are of no avail to the applicants/accused as the facts and circumstances of the referred cases are altogether different and distinguishable from the facts and circumstances of the present case.
14. The upshot of the above discussion is that there are reasonable grounds to believe that applicants/accused are guilty of the offence. Therefore, they are not entitled to bail and consequently their bail applications stand dismissed.
15. The observations made hereinabove are of tentative nature and they shall not in any way influence trial Court while finally disposing of the case upon merits after the evidence of witnesses is brought on record at the stage of trial.