MUHAMMAD ROSHAN ESSANI, J.- The facts leading to present application for bail are that applicants/accused Sher Rehman alias Tariq and Ghulam Shabir Kalhoro, are facing trial under Section 382/34 PPC in Sessions Case No. 173/1998 before learned VIIth Additional Sessions Judge, Karachi arising out of the FIR No. 8 of 1998 of Police Station Bahadurabad Karachi.
2. The brief facts of the prosecution case as disclosed in the FIR lodged by one Haji Suleman are reproduced below:- "I am residing on the aforesaid address and do business. Suzuki Margala, Black Colour, Model 1997 is registered in the name of Musamat Yasmin Iqbal wife of my brother. On 9.1.1998 I went to Dhoraji Market alongwith my two children and nephew Faizan s/o. Abdul Razzak aged about 17 years for purchasing the articles for Iftari: I parked the car in front of Nur Hospital. I alongwith my kids went to purchase articles for Iftari. My nephew Faizan was sitting in the Car and key was in the ignition of Car. At about 5.45 p.m. Two persons came. One sat on the driving seat and another also sat in the car. They made my nephew Faizan to sit in the midst. Out of them one was armed with pistol. They started car and took away car alongwith my nephew. Subsequently they dropped my nephew Faizan by the side of Air Port Bridge, after removing the golden locket from his neck. They also took away Mobile Phone No. 0331-543536 which was lying in the Car. I immediately informed 134 on phone and remained in search of car. I and my nephew Faizan can identify the culprits on seeing them. Now I have come for report. I report that accused have taken away my aforesaid car, mobile phone, and golden chain. Legal action be taken."
3. Applicants/accused applied for bail before the trial Court but the same was refused by impugned order dated 26.3.1.998.
4. Mr. Taza Gul Khatak learned counsel for the applicant/accused has contended that FIR is delayed by for days; that the name of applicants/accused does not transpire in the FIR nor description with regard to their eminent features is given therein; that the applicants/accused were arrested on 20.1.1998 at about 4 p.m. Opposite Islamia College M.A. Jinnah Road Karachi while sitting in the car and the car was secured as suspected stolen property and they had pointed out place of incident on the same day at 5.45 p.m; that no identification parade was held. It is therefore, urged that no offence under sections 382, 34 PPC is made out; that the mashirs are police men therefore recovery cannot be believed; that at the best offence falls under Section 411 PPC which is not punishable with death, imprisonment for life or ten years, thus it goes out of the embargo contained under section 497(1) Cr.P.C.; that joint Mashirnama of recovery is prepared in the case which is not warranted by law and that the case is outcome of enmity, that the case necessitates further enquiry as contemplated under section 497(2) Cr.P.C, and applicants/accused are entitled to bail. He has p!:.Ced reliance on 1994 P.Cr.L.J.
47l and 1993 P.Cr.L.J. 1017.
5. Mr. Ashique Hussain Mehar, learned counsel for the State has conceded to the grant of bail.
6. 1 have carefully considered the arguments of learned counsel for the applicants/accused and learned counsel for the State. I have also perused the police record. With the assistance of learned counsel of the parties as well as the material on record and impugned order.
7. The applicant/accused were arrested at about 4 p.m. In front of Islamia College M.A. Jinnah Road. Karachi while they were sitting in the snatched car. The car was secured as suspected stolen property under Section 454 Cr.P.C, and applicants/accused were arrested under mushirnama. The contention that no private persons were made mashirs of recovery is devoid of force as during odd hours of night it is practically impossible to procure the attendance of private persons to act tis mashirs, therefore looking to the peculiar facts and circumstances of this case, prima facie, no violation of section 103 Cr.P.C, is made out at this stage. The evidence of a police man also cannot be ignored at this stage as a police man is as good a witness as any other person until and unless evidence is brought on record to disbelieve him. So far delay in lodging the FIR is concerned in my view the same has been sufficiently explained in the FIR, as immediately after the occurrence the complainant informed the police about the robbery of car etc. On telephone No. 134 and he remained in search of Car. In Karachi now-a-days vehicle snatching has become order of the day, and such an act amounts to terrorism. In this context I am fortified by the un-reported decision of this Court delivered by my learned brother Dr. Ghous Muhammad, J., in a case of Muhammad Shafique v. The State in Cr.B.A. No. 1451/1997. Moreover as per prosecution case after their arrest the applicants/accused voluntarily led the police and pointed out the place of incident wherefrom they had taken away P.W: Faizan alongwith Car. Prima facie it is a strong piece of circumstantial evidence against them, therefore the contention that no offence under section 382/34 PPC is made out is misconceived. The plea that offence squarely falls under section 411 PPC is also not tenable, because it is not case of knowingly retaining the stolen property simpliciter but in the case in hand snatched car was secured from the possession of both the applicants/accused during odd hours of night while they were sitting therein. Hence prima facie offence will fall if at all under section 412 PPC which is punishable with imprisonment of life or ten years and fine. So far preparing joint mashirnaina by the police is concerned, it does not suffer from any legal infirmity as both the applicants/accused Were not arrested from separate or distinct places at different timings but they were arrested at one and same time sitting in the snatched vehicle therefore this contention has also no force.
8. The argument that name of applicants/accused does not transpire in the FIR is also without any substance because as per prosecution case both the applicants/accused were not previously known to complainant or P.W. Faizan. Not giving the description of eminent features in FIR or holding no identification parade, in my view tantamount to deeper appreciation or evaluation of evidence which is not permissible under law at the stage of bail. The law on this aspect of the matter is well-settled, as for the grant or refusal of bail only tentative assessment is to he made, In respect of enmity no documentary or any other material has been placed on record or pointed out, from which it could be. Deduced that case is outcome of enmity. The bare words of applicant/accused that case is outcome of enmity is not sufficient.
9. The case-law cited by the learned counsel for the applicant/accused is of no avail 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.
10. In case of Rafique Alias Pheeki and others Versus The State reported in 1993 P.Cr.L.J. 1017, two accused jointly led the police party and from an uninhabited quarter of 7 marlas Scheme in area of Chak No. 3812-R produced stolen Motor Bike alongwith registration book which were secured, whereas in the present case applicants/accused were found sitting in the snatched vehicle.
11. In the of Muhammad Akram Versus The State, reported in 1994 P.Cr.L.J. 471 there was no evidence or link to the effect that the accused was one of the person who snatched the car but in the case in hand both applicants/accused led the police and pointed out the place wherefrom car was taken away by them alongwith P.W. Faizan. The place so shown was the same which was mentioned by.
The complainant in FIR and in the mushirnama of the scene of offence.
12. For all the reasons stated hereinabove 1 do not agree with the learned, counsel for the applicants/accused as well as with learned State counsel and I see no merit in the bail. Application which is accordingly dismissed.
13. The observations made hereinabove are of tentative nature and the trial Court will not be influenced thereby in any way at the time of final decision of the case and will be free to conclude and arrive at its own findings after evidence is recorded in the case.