1. ' Granted subject to just exceptions.
2. The case of prosecution, as reflected in the F.I.R. Lodged by Shahid Ahmed Khan, is that he is running the factory Aishahab Enterprises situated in North Karachi. On 14-12-2001 at 5-30 p.m. The complainant was present in his factory along with his helpers and other workers while the Chowkidar had gone for purchasing Iftari material when three persons entered the factory. One of them was armed with a Pistol. They confined the complainant party in the office and when Chowkidar turned up he was also confined there. Afterwards when the complainant party got out of the office by dislocating the tin roof they found that 20 bags of cotton yarn were missing. It is the case of prosecution that on 21-12-2001 the police, on receiving spy information raided a go down and recovered 20 bags of cotton yarn. The person present there namely the applicant was also arrested. He was identified by the witnesses.
2. Learned counsel for applicant submitted that the incident took place on 14-12-2001 yet the F.I.R.
3. Was delayed upto 20-12-2001 and there is no plausible explanation in the F.I.R. Secondly, no identification test was held in presence of a Magistrate but the witnesses had identified the applicant only in presence of police. There was also no identification test in respect of the property recovered. Additionally, he contended that statements of witnesses were not recorded under section 164, Cr.P.C. He relied on Farman Ali v. State (1997 SCM R 971). Ghulam Rasool v. State 2002 M LD 7 and Muhammad Nadeem Khan v. State 1999 M LD 1013. Mr. Javed AldLtar, learned counsel for State opposed the bail on the ground that the eye-witnesses had identified the applicant and recovery of the stolen property has been made in presence of mashirs.
4. The principle of law laid down in Farman Ali's case (supra) is fully applicable to the instant case. It was emphasized by the Honourable Supreme Cdurt that identification parade was necessary if the culprits were not named in the F.I.R. Similarly, the principle laid down by, this Court in Ghulam Rasool's case (supra) also supports the bail plea. In that case the accused was not named in the F.I.R. And no identification test was held relating to identity of the accused. In Muhammad Nadeem Khan's case (supra) the recovery was made from a thickly populated B area but no independent mashir was joined. In the instant case the name of applicant is not appearing in the F.I.R. And the prosecution has based its case on the identification of the applicant in presence of police. The identification of property has also not been held. If, at all, it is a case of recovery of stolen property the offence would not fall within the prohibitory clause of section 497, Cr.P.C., otherwise, the case calls for further inquiry as regards identity of the applicant.
5. ' In view of the circumstances discussed above the application is allowed. The applicant be released on furnishing surety in the sum of Rs,100,000 and executing P.R. Bond in the like amount to the satisfaction of the trial Court.