ABDUL AZIZ vs MUHAMMAD AZEEM And 4 Others

JUDGMENT ATTAULLAH KHAN, J.---Abdul Aziz Khan, accused/petitioner, has filed this application for his release on bail in case F.I.R. No. 455 dated 17-11-2010 of Police Station Lakki Marwat registered under sections 382/324/148/149 P.P.C.

2. According to the F.I.R. Lodged by Muhammad Azeem Khan, some eight unknown persons have forcibly taken away on gun-point an amount of Rs. 1500 from him, Rs. 40,000 each from Raza Khan and Abdul Hakeem while Rs.1,07,000 from Muhammad Aslam Khan of different denomination and fired at the complainant party with which Muhammad Aslam Khan was injured.

3. Learned counsel for the petitioner argued that the petitioner is not named in the F.I.R. Which is lodged against unknown persons. He argued that the supplementary statement of the complainant was recorded on 24-11-2010 where too he did not charge the petitioner. According to the learned counsel, the petitioner did not record confession in spite of the fact that he was produced before the Court but he refused to admit his guilt.

4. On the other hand, learned counsel for the complainant and State argued that through recovery memo dated 22-11-2010, some amount allegedly stolen by the accused has been recovered from two shopkeepers which was paid by the petitioner.

5. I have gone through the record carefully and considered the arguments of the learned counsel for the parties..

6. The first fact to be noted is the non-mentioning of names of the accused in The F.I.R. And the murasila lodged by the complainant. Eight persons have been mentioned. As armed with deadly weapons unknown to him who snatched away the different amount from different passengers and also injured Muhammad Aslam Khan. The record further reveals that even subsequently no body has been named as an accused including the petitioner. The accused/petitioner was produced before the Court of Magistrate on 25-11-2010 along with an application with a prayer for recording of his confessional statement but he refused in the Court and to that effect order is recorded by the learned Magistrate. It is also pertinent to mention that nothing has been recovered from the petitioner to connect him with the offence. The money recovered is from two shopkeepers vide recovery memo dated 22-11-2010, but this recovery memo also does not connect the petitioner with the offence because it does not disclose that the alleged recovery is stolen property. Moreover, A these two witnesses were examined under sections 164, Cr.P.C. By the Judicial Magistrate wherein both of them have stated that Abdul Aziz petitioner has purchased some household articles and in that connection payment was made to them. It does not disclose, that this amount was snatched by the petitioner from the complainant party. Similar is the position of recovery memo dated 23-11- 2010 vide which the amount of Rs. 10,000 was recovered from Hakim' Khan. This Hakim Khan has also recorded statement before the Judicial Magistrate wherein he has stated that it was alone paid by him to the accused who repaid it. Here again there is no mention of stolen property.

7. In a similar situation when there was no identification of the accused and no recovery of incriminating article from the accused, bail was granted to him by the honourable High Court, which is reported in 1991 PCr.LJ 198. In an another case reported in 2009 PCr.LJ 1172 the accused were granted bail because of non-mentioning of his name in the F.I.R.

8. Moreover, in this case after arrest of the accused, his identification parade was required to have been conducted by the prosecution but it has failed to do so. In a similar situation, the Apex Court in the case of Muhammad Suleman v. Riasat Ali and others reported in 202 SCMR 1304 has held:-- "Moreover, non-holding of identification parade in respect of respondent after his arrest bring his case within the purview of subsection (2) of section 497, Cr.P.C."

9. Here in this case also, the prosecution has failed to conduct identification parade enabling the complainant to identify the culprits.

10. I have come across copy of F.I.R. No.114 dated 14-6-2010 in which accused/ petitioner Abdul Aziz is allegedly involved. It is pointed out that so far the trial has not been completed in that case. In my opinion, involvement of the accused/petitioner in another criminal case is no ground for refusing bail to him unless it is proved that he is habitual offender. The reason is that his case is still pending and so far no result has come out. In such like situations, the Karachi High Court in a case reported in 1999 PCr.LJ 271 has held that:-- "The report obtained from the Jail authorities indicate that the applicant/accused is involved in seven criminal cases. His bail application was rejected by the learned trial Court solely on the ground that since he is involved in seven criminal cases and the alleged offences are of heinous nature, therefore, he is habitual, desperate and hardened criminal. The view taken by the learned trial Court is erroneous and against the well-settled law. Mere pendency of cases is no ground to treat an accused as habitual, hardened and desperate criminal".

11. In short, the accused/petitioner is not named, in the F.I.R., no identification parade after his arrest has been held, there is no ocular evidence to connect him with the offence and no incriminating material has been recovered from his possession, therefore, his case falls within the ambit of further inquiry entitling him to the concession of bail.

12. The application is, therefore, allowed and the accused/petitioner is admitted, to bail in the sum of rupees one lac with two sureties each in the like amount to the satisfaction of Illaqa/ Judicial Magistrate who shall see that the sureties are local, reliable and men of means..