1. ' Applicant Mir alias Abdul Qadir has been booked for an offence punishable under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 in a case registered at Police Station, A-section, Kandhkot.
2. ' The incident is said to have taken place on 11-8-2003 during day time at 3-30 p.m. In the house of complainant Hakim Ali. According to F.I.R. Complainant, Hakim Ali and his cousin Wazir and Nazir were sitting in the Verandah of the house when five persons with open faces armed with T.T. Pistol barged in to the house and on the point of fire-arms controlled the complainant party and robbed cash Rs.75,000, gold ornaments, a pistol of 30 bore etc and decamped. Complainant lodged the F.I.R. Against unidentified persons on the same day at 1600 hours. Again on 12-9-2003, the complainant made further statement before police alleging that the offence has been committed at the instance of one Khuda Bnx who was on visiting terms with them and had stood outside the house at the time of occurrence while the other culprits were Mir alias Abdul Qadir the applicant, Sultan, Nader, Rasheed and Nazeer. The applicant and two co-accused Sultan and Khuda Bux were arrested on 18-9-2003 and put to identification test on the following day. The recovery of ornaments etc. Were made from them on 29-9-2003.
3. ' I have heard Mr. Muhammad Ayaz Soomro learned counsel for the applicant, Mr. Muhammad Ismail Bhutto learned State counsel and Mr. Abdul Rehman Bhutto learned counsel for complainant, who opposed the bail vehemently.
4. ' Main contention advanced by Mr. Soomro was that complainant Hakim Ali and applicant Mir both are residents of Gulsher Muhalla Kandhkot town which is very small locality and they are known to each other. He urged that on this ground bail was granted to co-accused Khuda Buz, since he was known to complainant as such following the rule of consistency bail be Also allowed to the applicant. He emphasized that the complainant in his further statement recorded on 12-9-2003 mentioned the names of the culprits including the applicant yet identification test was held after arrest of the applicant which has no evidentiary value. He relied upon the case of Slut'nada v. The State PLD 2002 Kar. 402 in support of his contentions.
5. ' Mil Muhammad Ismail Bhutto learned St.Tte counsel conceded to grant of b2i1 in view of the fact that bail has been granted to co-accused Khuda Bux.
6. ' Mr. Abdul Rehman Bhutto learned counsel for the complainant submitted that the pieces of evidence collected during the investigation sufficiently involve the applicant, he is therefore, not entitled to bail at this stage. He further clarified that role of Khuda Bux is much different from the, role of present applicant. Since Khuda Bux was not seen by the. Complainant as he allegedly stood outside the house at the time of occurrence.
7. ' I have considered all the contentions carefully. The two pieces of evidence which as urged by learned counsel for complainant provide sufficient inculpatory evidence, are the identification test and recovery of robbed articles. As far the recovery is concerned it is noted on thorough perusal of police papers that no identification test has been held through complainant or any other person in respect of robbed articles to lay a claim that the gold ornaments etc. Recovered from the applicant were the same which were forcibly taken away at the time of occurrence. Amazingly, even no claim has been recorded by Investigating Agency to say barely that those articles belonged to complainant. From this point of view the case would require further enquiry as far the recovery is concerned.
8. ' Equally, the evidence with regard to identification meets with apparent setback for, during the so called further statement, which though has no probative value by itself, but at least it is a version given by the complainant 12-9-2003 naming the applicant with specific identity that he was resident of same Gulsher Muhalla. Notwithstanding this position, surprisingly, an identification test was held in respect of a known person who has already been named by the complainant in his further statement; this aspect of the case also calls for further enquiry.
9. ' In view of the above discussion, I am convinced that the applicant has got a case for bail, the application is therefore, allowed, the applicant be released on furnishing solvent surety in the sum of Rs.1,00,000 and P.R. Bond in the like amount.
10. ' The observations made above are tentative in nature and shall not affect the merits of the case which would of course, depend upon the evidence recorded at the trial. Further, on the request of learned counsel for the applicant, the applicant is allowed to furnish surety to the satisfaction of Additional Registrar of this Court.