1. ' This bail application has been moved on behalf of the applicant/accused Abdullah alias Manan who is facing trial alongwith others in the_Court of 1st Additional Sessions Judge, Karachi Central in Sessions Case No,269 of 1999 for the offence punishable under section 396 read with section 34, P.P.C.
2. ' The brief facts of the prosecution case as disclosed by the complainant Muhammad Siddique in F.I.R. No,220 of 1999 lodged by him on 12-9-1998 at Police Station Khawaja Ajmair Nagri are that at about 5-00 a.m. On 12-9-1998 he after reciting Holy Qur'an opened the door of the room of first floor of his house when three culprits duly armed with pistol entered the room and caught hold him.
3. They tied him, her wife Shahida, daughter Rukhsana and son-in-law Jamal. Thereafter, they searched the house and from different place took into possession Rs,25 lacs and gold jewellery weighting about 750 grams. All the three persons after putting all the robbed money and articles in a bag left the house alongwith the said bag. Subsequently, it transpires that there were two more persons who had made two sons of the complainant as captives and kept watch on the roof of the house.
4. ' The F.I.R. Was recorded by Inspector Muhammad Dawood who started investigation and after completion thereof submitted charge-sheet on 27-3-1999 wherein accused/applicant Abdullah was shown as an accused in custody while five other accused were shown as not traceable. On 8- 11-1998 accused was arrested in a case under section 13-D, of the Arms Ordinance and during investigation admitted to be involved in this case. He was arrested after obtaining order from the competent Court and on 18-11-1998 he led the police and produced an amount of Rs,20,000 which was the left over amount out of his share in the booty. Another sum of Rs,90,000 and the gold jewellery was said to have been sent to Bangladesh. A bail application was moved on behalf of the applicant in the Trial Court but the same was rejected vide order, dated 17-11-1999 on the ground that a sum of Rs, 20,000 being part of the amount which was robbed from the house of the complainant was recovered from the possession of the applicant which led to the inference that the applicant had participated in the aforesaid offence and prima facie stood connected with the same. It was further observed that in view of the nature of the offence committed by the applicant he would be considered to be a dangerous, desperate, hardened criminal as a result of which he was not entitled to enlarge on bail in view of the third proviso of section 497 of Cr.P.C. Hence this bail application.
5. ' I have heard the arguments of M/s. Shahadat Awan and Muhammad Ismail Memon, learned counsel for the applicant and the State.
6. Applicant was arrested after about two months of the incident but was not put to identification test by complainant Muhammad Siddique and P.Ws. Shahida, Rukhsana and Jamal, who according to the F.I.R., were tied by the three culprits who had entered the house of the complainant and had committed robbery of a sum of Rs,25 lacs and gold jewellery weighing 750 grams. Identification of the applicant by the complainant and other prosecution witnesses would have been a very important circumstance for the prosecution for the purpose of prima facie connecting the applicant with the aforesaid offence. The alleged recovery of sum of Rs,20,000 from the applicant said to be a left over amount from his share of the booty of Rs,25 lacs is not a circumstance on the basis of which prima facie involvement of the applicant can be inferred inasmuch as the notes consisting the aforesaid amount of Rs,25 lacs did not bear any specific marks or identification to establish that these were the same notes which were robbed from the house of the complainant.
7. ' It is an admitted fact that more than one year has passed since the challan was submitted but the case has not yet been completed and it is also not known as to how much further time will be consumed for completing the trial of the applicant inasmuch five other persons have been shown as not traceable and the Trial Court had not yet concluded the proceedings for declaring them as absconders and for proceeding with the case under section 512 of Cr.P.C. I have gone through the diary sheets of the trial Court as well as IIIrd Judicial Magistrate which have been filed alongwith the bail application from which it is to be seen that on a large number of dates the applicant was not produced in Court by the jail authorities. From perusal of diary sheets of third Judicial Magistrate, Karachi Central it transpires that the challan was submitted in this Court on 3-8-1999 when he ordered registration of the case and sent R & P to the District Judge, Central for taking cognizance of the case under section 190(3), Cr.P.C. On 12-8-1999 the case was received by the Sessions Judge and then he transferred it to the 1st Additional Sessions Judge (C). In the circumstance for almost one year the I B prosecution had not submitted the challan. From perusal of the diary it further transpires that after submission of the challan the applicant was not produced in Court on several dates of hearing.
8. ' From the above discussion it is to be observed that the prosecution is not in possession of such reliable evidence on the basis of which it can be said that the applicant prima facie stands connected with the offence of decoity, the matter requires further inquiry and for the time being there is no reason to believe the applicant to be guilty of an offence punishable with death imprisonment with life or ten years. As the applicant prima facie stood committed with the offence charged with, it would be difficult to hold him as a dangerous, desperate, and hardened criminal which inference can be had if the prosecution had succeeded in prima facie connection him with the aforesaid offence of being armed with fire-arms forcibly entering the house of the complainant alongwith others and by show of force robbing the ornaments and other valuable articles and huge amount of money. However, as the prosecution is not in a position to establish by satisfactory evidence the involvement of the applicant, he cannot be said to be a dangerous, desperate and hardened criminal.
9. ' Upon the above discussion, I am satisfied that the case is made out for enlarging the applicant on bail. Accordingly, I grant bail to the applicant on his furnishing solvent surety in the sum of Rs,2,00,000 with P.R. Bond in the like amount to the satisfaction of the trial Court.