1. ' We intend to dispose of both these bail applications with this common order as they arise from the same transaction.
2. ' The F.I.R. No,106 of 1999 was lodged by A.S.-I. Ghulam Hussain Chandio with Market Police Station, Larkana on 20th August, 1999 at about 14-10 hours alleging therein that on the same day at about 13-00 hours when he was on patrol duty alongwith his subordinate staff, he saw 2/3 persons near Al-Reheem Hotel standing in suspicious manner. It is further alleged that on seeing police party they started running whereafter two of them were apprehended while the third made his escape good but meanwhile he left his National Identity Card at that place. The third accused who absconded from the spot and whose N.I.C. Was recovered, was found to be Arz Muhammad who is not applicant before this Court. It is further alleged in the F.I.R. That several persons gathered on the spot but nobody came forward to act as Mashir and, therefore, a search was made in presence of two police Mashirs whereafter one S.M.G. Having folding Butt with one magazine was recovered from the search of accused Hakim Ali. Upon search of second accused Muhammad Hussain one knife was recovered from his side pocket and both accused were taken into custody. A separate F.I.R. Bearing No,107 of 1999 was lodged on the same day under section 13-D, Pakistan Arms Ordinance against accused Hakim Ali which is subject-matter of Criminal Bail Application No,D-251 of 1999.
3. We have heard Mr. Nisar Ahmed G. Abro for the applicant and Mr. Altaf Hussain Surahio, for the State. It was contended by Mr. Nisar Ahmed Abro that the F.I.R. No, 106 of 1999 was wrongly lodged under sections 399/401, P.P.C. Inasmuch as there were allegedly three accused. It was further contended by him that this is sufficient ground for grant of. Bail. He has placed reliance on a decision of Supreme Court in Abdul Zubair v. The State 1997 SCM R 966. In that case Honourable Court granted bail upon consideration of the following facts:-- "3. We have considered the matter carefully. We find that a case under section 13 of the Arms Ordinance for the recovery of unlicensed .30 bore revolver has separately been registered against the petitioner. The petitioner and his co-accused had not committed robbery. Plain reading of sections 399 and 402, P.P.C. Shows that for convicting the accused under these sections of the P.P.C., the number of the persons assembled for the purpose of committing dacoity shall not be less than five, but in the instant case, the number of the accused found in the taxi car was three.
4. This being the position, the question whether the accused are guilty of offences punishable under sections 399/402, P.P.C. Requires further enquiry."
5. ' Mr. Altaf Hussain Surahio, learned counsel appearing for the State, has vehemently opposed grant of bail and contended that this is a fresh case and that present applicants were arrested from the main Bazar as they were found standing with the intention to commit robbery; that the accused persons have failed to establish any enmity with the Investigating Officer in order to show that they have been falsely involved. However, he has admitted that the offence under section 13-D,' Arms Ordinance, 1965, does not fall within the prohibitory clause of section 497, Cr.P.C.
6. ' After hearing both the.Learned counsel at length. And after going through the police papers, we are of the considered opinion, which is indeed tentative in nature, that the prosecution needs some more material to connect the accused with the alleged offence and that the rule laid down by the Honourable Supreme Court in the case of Abdul Zuhair (supra) is fully attracted. We, therefore, accept both these applications and gram ball to both the accused upon furnishing solvent surety in the sum of Rs, 10,00,000 each' and in the like amount in other case with P.R. Bond in the like amount to the satisfaction of Additional Registrar of this Court.