AZIM KHAN vs THE STATE
This bail application arose from the dismissal of a post-arrest bail plea by the Additional District Judge, Malir, Karachi, in a case involving robbery of Army officials. The applicant, charged under Section 392/34 of the Pakistan Penal Code 1860, sought bail on grounds of delayed FIR, discrepancies in recovery evidence, and the contention that the offence did not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898. The Court examined the record, noting that the applicant had been identified during an identification parade and that witnesses had recorded statements under Section 164 of the Code of Criminal Procedure 1898. The Court held that the offence fell within the prohibitory clause due to the potential punishment of ten years. Furthermore, the Court observed that the applicant was a habitual criminal, having been arrested in another crime. Consequently, the bail application was dismissed. The Court affirmed that while bail was denied, the trial court must proceed expeditiously, ordering the bifurcation of the case against absconding co-accused and directing the framing of charges within fifteen days and conclusion of the trial within six months.
- Does the robbery of arms and mobile phones from officials fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- Can a bail application be denied on the ground that the accused is a habitual criminal?
- Does a discrepancy in the serial numbers of recovered items in the FIR and recovery memo necessarily invalidate the prosecution's case at the bail stage?
- Is the trial court required to bifurcate the case of an absconding accused to ensure the expeditious trial of the arrested accused?
- Section 392, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 164, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
ORDER
1. ' SYED MEkIMOOD ALAM RIZVI, J.---This bail application is directed against the order of the learned 2nd Additional District Judge, Malir, Karachi, passed in Criminal Bail Application No,188 of 2007 in Crime No, 132/07 under section 392/34, P.P.C. Registered at Police Station, Sohrab Goth, by which the application was dismissed vide order dated 4-4-2008.
2. ' Precisely, the facts of the case are that, three young persons robed the Army officials posted at Police Station, Sohrab Goth and snatched their arms and mobile phones, as a result, above case was registered on the complaint of Muhammad Muteef. Subsequently, accused and co-accused Ramzan were arrested in another crime and the robed pistol from the applicant and mobile phone from the co-accused were recovered. Thereafter, during interrogation they accepted the above crime, as a result, they also arrested in this case and subsequently, the witness identified the accused during the identification parade which was conducted on 16-4-2007 and recorded their statements under section 164, Cr.P.C. Before the learned Judicial Magistrate on 20-4-2007 in presence of the accused persons.
3. ' Learned counsel for the applicant, inter alia, contended that the accused / applicant is innocent and has been falsely implicated on the following grounds:-
(a) F.I.R. Is delayed by 17 1/2 hours and no explanation has been given.
(b) The numbers of the robed pistols said to have recovered from the applicant are different from the F.I.R. And the robed mobile was not recovered from the applicant.
(c) The offence, if any, does not fall within the Prohibitory Clause of section 497, Cr.P.C.
(d) The accused/applicant is behind the bars for more than 16 months but the charge has not been framed as yet.
4. ' On the other hand, learned State Counsel has opposed the bail on the ground that the applicant / accused admitted his guilt before police, recovery of snatching pistol has been effected from the accused / applicant. He further contended that the applicant is a habitual criminal and had involved in another criminal offence.
5. Heard both the learned counsel and perused the record. The learned counsel for the applicant has not uttered any word regarding judicial identification parade and the statement of the witnesses under section 164, Cr.P.C. In presence of the applicant and co-accused which is after the arrest of the applicant who have implicated the accused / applicant with specific role, even the said fact has been mentioned in the impugned order.
6. ' So far as the issue of difference of numbers of the pistols is concerned, as per F.I.R. And memo. Of arrest/recovery, suffice it to say that it would not effect the prosecution case, as aggrieved persons have identified the accused and further, prima facie, the basic/initial numbers of the pistol are similar but anyhow, the same would be discussed in detail at the time of trial.
7. ' Every civilian is being affected due to street crimes but now these criminals are so dare enough to rob not only the police officials but the Army officials as well. The offence falls within the Prohibitory Clause of section 497, Cr.P.C. As the punishment is upto ten years and fine.
8. ' The accused / applicant was arrested after an encounter with the police on 9-4-2007, in Crime No,146/2007 which also shows that the accused is a habitual criminal, hence not entitled for bail at this stage. The impugned order needs no interference, therefore, the accused / applicant is not entitled for concession of bail. Hence the bail application of the applicant was dismissed in Court today i,e, on 8-8-2008. However, the expeditious trial is right of every accused and as per diary dated 28-4-2008, the learned trial Court was pleased to adjourn the case to 14-5-2008, for issuance of NBW against the absconding accused. As per police, the ' address of the absconding accused namely Latif son of Muhammad has not been mentioned, therefore, his case shall be bifurcated with the case of the applicant and co-accused Muhammad Ramzan and charge be framed within 15 days and proceed the case expeditiously and conclude the same within six months.
9. ' These are the reasons of short order dated 8-8-2008 passed in Court today.