SAMIULLAH Versus State
This criminal bail application arises from an order of the Additional Sessions Judge dismissing bail for the applicant, Samiullah, who was implicated in F.I.R. No. 557 of 2009 registered under Section 395 of the Pakistan Penal Code at Police Station Shah Latif Town. The core legal question was whether the applicant was entitled to post-arrest bail given that he was not nominated in the F.I.R., was not subjected to an identification parade, and was arrested under doubtful circumstances with questionable recovery of a mobile phone. The Sindh High Court held that the applicant had made out a case for further inquiry as wrongful implication could not be ruled out, and extended the benefit of doubt to grant post-arrest bail. The key principle laid down is that where an accused is not nominated in the F.I.R., lacks an identification parade, and the circumstances of arrest and recovery are doubtful, the benefit of doubt should be extended at the bail stage.
- Whether an unnominated accused in an F.I.R. is entitled to post-arrest bail when no identification parade has been conducted?
- Does the doubtful recovery of an ordinary item like a mobile phone from an abandoned place warrant the grant of bail?
- Can the benefit of doubt regarding false implication be extended to an accused at the pre-trial bail stage?
- Section 395, Pakistan Penal Code 1860
- Section 497(2), Code of Criminal Procedure 1898
ORDER
1. ZAHID HAMID, J ---This Criminal Bail Application has been moved on behalf of applicant/accused Samiullah after his application for grant of bail, bearing Sessions Case 59 of 2010, was dismissed by learned 1st Additional Sessions Judge Malir, Karachi vide his order dated 19-2-2010, arising out of F.I.R. No. 557 of 2009 registered at Police Station Shah Latif Town, under section 395, P.P.C.
2. The complainant Muhammad Zeeshan lodged the F.I.R. at 1500 hours, stating therein that when he returned to his house on 23-11-2009 at about 12-45 p.m. after having bought the eggs from Quaidabad for his shop situated in his house, he found three persons armed with pistol inside holding the inmates of his house as hostage. They took him to the room where his mother, brother and infants were already confined. One of the culprits pointed out pistol toward the complainant and asked him for ransom of Rs.50,00,000. The complainant denied that he possessed such a huge amount. Thereafter the culprits committed robbery of cash of Rs. 280,000 from almirah, mobile phone Nokia 1661, licensed Repeater of his father bearing No. PA 13679 along with 26 cartridges with belt from the complainant and then all the four accused persons escaped after bolting the outer door from the outside. It was also stated in the F.I.R. that two culprits had muffled their faces and the complainant could not identify them. On queries made by the complainant from his family, he was informed that the accused persons entered inside the house at 12.05 noon and by show of force by means of weapons the inmates were confined in one room and they took eight ladies finger-rings, three pairs of earings and three gold necklaces. The complainant thereupon went to Police Station Shah Latif Town and recorded the F.I.R. The police action per F.I.R. shows that it was registered against four un-known accused persons although according to first version three culprits were said to have entered the house.
3. I have heard Mr. Muhammad Nawaz, learned counsel for the applicant/accused Samiullah. He submitted that the applicant was not nominated in the F.I.R. nor was put through the exercise of identification parade for due identification by the complainant and his family members/eye-witnesses and as such false implication could not be ruled out.
4. He further argued that place from where the alleged recovery of Nokia Cell, which is conveniently available in the market, was made was an abandoned place with a broken lock having been put outside on the entrance door. The learned counsel further argued that the applicant at the time of such recovery was not followed by the complainant or other witnesses/his family members, who could identify the cell phone and pistol brandished by one of the culprits at the time of occurrence. Learned counsel submitted that in the F.I.R. the weapon, which was robbed, was a Repeater yet its recovery along with gold ornaments has not been made from the possession of applicant Samiullah, whose role is also not specified in F.I.R.
5. The two co-accused are said to have been granted bail and though two of the three accused persons were stated to have muffled their faces, it is yet to be determined as two who was the accused who had not muffled his face. Learned counsel has also argued that applicant Samiullah has been arrested under most doubtful circumstances as it would appear from the memo. of arrest, in the absence of any pointation by the complainant or any other eye-witnesses/his family members. Learned counsel has further argued that both the applicant and complainant hail from Quaidabad and as such it seems that the accused has been picked up and falsely implicated to settle some old personal score or grudge. The recovery of Nokia cell attributed to the accused has also not been recovered from his possession and fourth accused (though shown three in the exordium of the F.I.R.) who was arrested was subsequently released after investigation under section 497(2), Cr.P.C. Learned counsel has finally argued that no features of the culprits were specified in the F.I.R. and wrongful implication of the applicant cannot be ruled out.
6. Ms. Seema Zaidi, Learned Assistant Prosecutor-General, on the other hand, submitted that Nokia cell was recovered from the possession of the applicant and police had no motive to falsely implicate the applicant/accused.
7. I am not impressed by this plea of learned APG. In view of the overwhelming circumstances, as pointed out by the learned counsel for the applicant, the wrongful implication of the applicant cannot be ruled out. Accordingly benefit of doubt, for the grant of bail, is extended to the applicant/accused. He was granted bail by a short order dated 19-4-2010, subject to his furnishing solvent surety in the sum of Rs.50,000 (Rupees fifty thousand) and execution of PR Bond in the like amount to the satisfaction of the trial Court, and these are the reasons for the same.
8. H.B.T./S-67/K ???????????????????????????????????????????????????????????????????????????????????? Bail granted.