MOHAMMED ISMAIL Versus State
ORDER
KHADIM HUSSAIN M. SHAIKH, J.--- Through this application, applicant Muhammad Ismail has sought his release on bail in case culminated from FIR No.78/2016 for offence under sections 392, 34, P.P.C. of Police Station Maripur, after his bail plea has been declined by the learned Courts below by dismissing his bail applications bearing Nos.37 of 2006 and 1309 of 2016 vide orders dated 02.07.2016 and dated 20.08.2016 respectively.
2. Briefly the facts of the case are that the mother of the complainant Imran on the day of incident i.e.16.06.2016 went to a shop of Goldsmith in a Rickshaw, driven by Muhammad Ismail (applicant), and returned home at about 1920 hours and at about 1925 hours, when family of the complainant sat for Iftar purpose, four persons duly armed with pistols forcibly entered into the house of the complainant, out of whom, one was recognized to be a Rickshaw driver Muhammad Ismail (applicant), who pointed his finger towards the complainant, and, then they on the force of weapons by breaking locks of Almirah, looted cash amount of Rs.761,000/- lying in the Almirah, seven mobile phones, valuable clothes and forcibly removed two pairs of ear rings of gold from the ears of the complainant's wife and his sister and while leaving they also forcibly took away motorcycle No.KJB-4853 Honda 125 CC of red colour Model 2016, of the complainant.
3. The learned advocate for the applicant has mainly contended that the applicant has been falsely implicated in this case; that no independent person has been cited as witness; that the investigation has been completed and the applicant is no more required for the purpose of investigation; that the offence with which the applicant is charged does not fall within the prohibitory clause of section 497, Cr.P.C. He, therefore, prays that the applicant may be granted bail. He has placed his reliance on the case of Abdul Sattar v. The State (2008 MLD 679) and case of Ghulam Akbar v. The State (2004 PCr.LJ 266).
4. Conversely, learned Additional Prosecutor General, Sindh has opposed the grant of bail to the applicant, contending that the applicant is involved in this heinous offence wherein the applicant is main culprit, who being Rickshaw driver, had taken the complainant's mother to a Goldsmith shop and on her return home, he and his three accomplices by entering into the house of the complainant have looted the cash amount, ornaments of gold, mobile phones and valuable clothes etc. and also forcibly removed the ear rings from the ears of the women folk by putting all the inmates of the house under fear of death and/or assault; that the P.Ws have supported the prosecution case; that there is sufficient evidence against the applicant to connect him with this crime; and, that the applicant is involved in various heinous crimes of the nature. She, therefore, prays that the bail application may be dismissed.
5. I have considered the arguments advanced by the learned counsel for the applicant as well as learned Additional Prosecutor General, Sindh for the State and have also gone through the material available on record with the assistance of learned A.P.G.
6. Record reflects that the name of the applicant does find place in the FIR; that the applicant is allegedly main culprit in the crime involved in this case, as in earlier part of the day of incident he, being Rickshaw driver, took the mother of the complainant to a goldsmith shop and then on her return home, the applicant accompanying his three other accomplices duly armed with weapons intruded into the house of the complainant and looted cash, mobile phones and valuable clothes etc. and also forcibly removed ear rings of the women folk; that the prosecution witnesses in their statements under section 161, Cr.P.C. have implicated the applicant; that no material worth consideration has been brought on record to suggest any animosity between the complainant party and the applicant; it needs no reiteration that recurrent offences of the nature have caused panic among the people, and, it is oftenly seen that the culprits involved in such offences do not hesitate in taking the lives of innocent persons even on a slightest resistance shown by the person being looted by them; and, the people, feeling themselves unsafe, due to fear, threats and lack of interest by the police, are avoiding to lodge such cases and/or to become witnesses against the culprits involved in such heinous crimes; that there is a prima-facie sufficient material against the applicant to connect him with the offence alleged against him; needles to add that an accused of an offence, which does not fall within the prohibitory clause of section 497, Cr.P.C., cannot claim concession of bail as a matter of right and the Court may decline bail to an accused, if there exists recognized exceptional circumstance(s); and as such grant of bail in a case, which does not fall within the prohibitory clause of Section ibid, is not a rule of universal application, and the discretion remains with the Court to see, if the accused deserves to be enlarged on bail or not; that the accused involved in the cases, with allegations of committing robberies always have adverse credentials and antecedents. In case of Afzal Ahmed v. The State (2003 SCMR 573), the Hon'ble Supreme of Pakistan, while dismissing the petition and refusing the leave, has held that:-
"5. The mere fact that an offence did not fall within the prohibitory clause of section 497(1) of the Cr.P.C. did not mean that such an offence had become a bailable offence. The discretion still remained with the competent Court to consider whether a person accused of such an offence did or did not deserve the grant of bail in accordance with the established norms governing the exercise of such a power ..........."
7. The cases relied upon by the learned advocate for the applicant being distinguished on facts and circumstances, are not applicable to the case in hand, as in case of Abdul Sattar (supra), mere presence of the accused, who sought bail was shown without any specific role assigned to him in the FIR and in case of Ghulam Akbar (supra), the allegation against the accused was only of abetment attracting the offence under section 109, P.P.C. and thus none of the cited cases is helpful for the applicant.
8. In view of what has been stated above, I am of the considered view that the applicant Muhammad Ismail is not entitled to the concession of bail. Accordingly, the bail application is liable to be dismissed.
9. Above are the reasons of short order dated 25.10.2016, whereby the instant bail application was dismissed.
10. The observations made hereinabove are tentative in nature only for the purpose of deciding bail application, and the same shall not influence the learned trial Court while deciding the case. The learned trial Court is directed to conclude the trial of the subject case preferably within a period of three months.
WA/M-89/Sindh Bail refused.