1. ' Applicants Imran and Siddique Ahmed have to face their trial under section 393/34, P.P.C. For an offence registered as F.I.R. No 218 of 2004 at Police Station, Preedy, Saddar Town, Karachi on 8-4- 2004.
2. ' In nutshell the case of the prosecution is that on the fateful day at about 0315 hours complainant Muhammad Ashraf was available on his shop when he received a telephonic message from his daughter that 3 dacoits/robbers had forcibly entered in his house. He rushed to his house where he saw Moballah people also present. One police mobile had also reached there. On inquiry his wife disclosed that 3 dacoits/robbers had entered into their house forcibly and at pistol point locked her and three daughters in a washroom. They had snatched cash and jewellery but did not succeed in taking away the robbed property as a lady sweeper after seeing the culprits had raised cries which attracted Mohalla people who gathered there and arrested 2 culprits due to which the culprits failed to take away the robbed property with them, however, the third culprit/robber succeeded in running away. According to the F.I.R., on inquiry the two arrested culprits disclosed their names as Imran son of Khursheed and Siddique Ahmed son of Muneer Ahmed. After usual investigation police has sent up two applicants to face their trial. A bail application was filed before the learned trial Court/ Sessions Judge, Karachi (South), which has been dismissed on 8-5-2004, whereafter the applicants have approached-this Court.
3. ' I have 'heard Mr. Muhammad Khan Buriro learned counsel for the applicants and Mr. Muhammad Sabir Chipa, Advocate for A.-G. For State.
4. ' The main contention of the learned counsel of the applicants is that there was some dispute over money between the complainant and the present applicants over. Purchase of a mobile phone as such they have been falsely implicated in the case. The next contention of the learned counsel for the applicant is that at the most it is a case, of attempt of robbery as it is hot shown that robbery has actually been committed or anything has been recovered from the possession of the applicants.
5. ' Learned counsel while referring to a number of cases reported as (1) Mohammad Azeem v. The State 1999 PCr.LJ 308; (2) Anwar Saifullah Khan v. The State 2001 SCM R 1040; (3) Pervez lqbal v. The State 1995 PCr.LJ 433 and (4) Pervaiz Ali Shah v. The State 1997 PCr.LJ 1988 has tried to show that in the case which do not fall within the prohibitory clause bail is right of the accused and even otherwise bail cannot be refused by way of punishment. Learned counsel has further argued that if an innocent person is subsequently released and acquitted there is nothing to compensate for the period he remained confined and the wrong done to him whereas if a person is actually found guilty and convicted, he is given benefit under section 382(B), Cr.P.C. Learned counsel has further argued that the name of the third person who allegedly succeeded to run away from the place of incident has not been shown in the challan, hence it is a case of further inquiry.
6. ' On the other hand, Mr. Muhammad Sabir Chipa learned State counsel has argued that it is day time incident and accused who were duly armed were caught red-handed from the flat of the complainant by the Mohalla people. He has further argued that no hard and fast rule can be laid down in criminal cases particularly the bail matters so as to apply the same yardstick in each case. He has further argued that such types of incidents are becoming order of the day and need to be dealt with strictly as per law and if the line of arguments adopted by the learned counsel for the applicants is adopted. Then every accused involved in a case of whatever nature shall claim bail as a matter of right.
7. ' I have given due consideration to the arguments of the learned counsel for the applicants and learned State counsel. There would have been some force in the first contention of the learned counsel for the applicants that the applicants have been falsely implicated due to some dispute between them and the complainant over the purchase of mobile phone; had there been some proof on record even prima facie, or if the place of incident would have been the shop of the complainant, but in the absence of any such material and the place of arrest of the present applicants being the flat of the complainant, this contention has no legs to stand. Mere fact that the police has failed to locate and challan the third accused will also not improve the case of the present applicants who appear to have been arrested at the spot soon after the incident.
8. Furthermore, it is well-settled by now that in every case which is not punishable with death, imprisonment for life, or 10 years, bail is not to be granted as a matter of right. Reference can be made amongst others to the cases reported as Muhammad Siddique v. The State 2002 SCM R 442;
(2) Khawaja Noor v. Mumtalah Khan 2003 YLR 151 and (3) Hooro and another v. The State 2003 M LD 125.
9. Indeed, there is no relief in our criminal administration of justice to a person who is subsequently found to be innocent, or having been implicated falsely, nevertheless he has every right to sue the concerned persons for daMages for malicious prosecution and wrong done to him Be that as it may, at least for the purpose of bail, Court has to confine itself to the material placed before it and to find out whether there is no prima facie case to connect the applicants with the commission of the offence or there are no reasonable grounds to believe that the applicant has committed the alleged offence. In this case, there are no reasonable grounds to believe that the applicants have not committed the alleged offence and prima facie they appear to be involved in the crime.
10. I find myself in agreement with the view expressed by the learned State counsel that if bail is to be granted to every accused even if charged with a non-bailable offence without considering the merits of the case, merely on the plea that every accused is presumed to be innocent unless proved otherwise, the very concept and purpose of drawing a line between bailable and non- bailable offences and various kinds of punishments as prescribed by the law, shall stand frustrated.
11. ' In view of the discussion made above, I do not find any merit in this bail application, which is rejected. However, the applicants shall be at liberty to repeat their bail application before the learned trial Court after examination of some witnesses, at least complainant, if 3i case for bail is made out thereafter.
12. Bail application rejected.