2011 Y L R 2031
[Quetta]
Before Muhammad Noor Meskanzai, J
MUHAMMAD IQBAL alias IQBAL JATOI ---Applicant
Versus
THE STATE ---Respondent
Criminal Bail Application No.9 of 2010, decided on 20th January, 2010.
Crim inal Procedure Code (V of 1898) ---
----S. 497 ---Penal Code (XLV of 1860), S.392 ---Offences Against Property (Enforcement
of Hudood) Ordinance (VI of 1979), S.17(3) ---Robbery and Haraabah ---Bail, refusal of ---
Record being silent about any enmity in betwee n accused and complainant, question of
false implication of accused was out of question ---Accused was identified by complainant
during the course of identification parade ---Motorcycle, mobile etc. having been snatched
by show of force, particularly by show ing pistol to complainant, it could not be said that
S.17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 relating
to Haraabah, was inapplicable ---Legality of identification parade by Police, being
contentious, observation in that r espect at bail stage, could prejudice case of either party --
-Point of delay was of no consequence as in the circumstances of case no delay could be
attributed to have occurred ---Even otherwise, if one was not entitled to concession of bail
on merits, mere delay in lodging F.I.R., would not constitute a ground for bail ---Tentative
assessment of material on record, had fully implicated accused in alleged commission of
offence ---Collected material was rightly appreciated by the Trial Court ---Grant or refusal
of bail being matter of discretion of the court, once the discretion was exercised rightly,
within the parameters prescribed by law and approved by superior courts, courts were
reluctant to interfere with such discretionary order ---Bail application was dis missed, in
circumstances.
1994 PCr.LJ 1068 ref.
Nasir Yousafzai for the Applicant.
Zahoor Ahmed Shahwani Prosecutor -General for the State.
Date of hearing 12th January, 2010.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J .---The applicant, through this ap plication,
seeks bail, after rejection of his bail application by Additional Sessions Judge -II, Quetta
on 25th November, 2009.
2. The facts, as gathered from F.I.R. No. 159 of 2009 lodged with Police Station,
Shalkot, Quetta on 9th August, 2009 by complain ant Israr Ahmed, are that the
complainant along with his parents reside in Wadahat Colony Second Stop Raisani Street
and he works in daily newspaper "Kohistan" as generalist. Today he on his personal
motorcycle bearing Registration No.90620751, Chassis No. 78623417, Model, 2009 Black
colour went towards Hazarganji. At about 12 -30 Noon, when reached at Qambrani Road
Sharif Abad, abruptly a motorcycle 125 CC black coloured stopped in front of him, upon
which two persons were boarded; one of them was muffled fa ce, who appeared to be a
Bloch. He further alleged that one of them was clean shaved, who was middle age and he
can identify him when he appears to him, who was having a T.T pistol by means of
which, they snatched his motorcycle. He further stated that wh ile snatching motorcycle,
they threatened him for his life, due to apprehension of life he handed over the
motorcycle to them. It is further alleged that the accused also snatched his mobile Nokia
1208 having Sim No.0331 -296512. The complainant further all eged that one of the
accused boarded on his motorcycle and escaped towards East. On the basis of this F.I.R.,
the applicant was arrested and in identification parade, the complainant identified the
applicant as one of the accused, as such; challan of the c ase was submitted before the
trial Court.
3. During the course of hearing, the applicant moved an application for grant of bail,
which was dismissed by the trial Court vide order dated 25th November, 2009, hence this
application.
4. I have heard Mr. Nasir Yousafzai, Advocate for applicant and Mr. Zahoor Ahmed
Shahwani, learned P.G. Learned counsel for the applicant contended that the applicant
has been falsely implicated in the commission of offence. He further contended that the
police has managed a false and fabricated identification parade of applicant conducted
before a police officer, which according to learned counsel for the applicant, has no legal
sanctity in the eyes of law. The learned counsel further maintained that section 17 -E
Harraba does not attract in the instant F.I.R., as according to learned counsel, the F.I.R.
does not divulge any fact regarding a murderous attack. The learned counsel also urged
that the F.I.R. is delayed for more than one hour, as the place of occurrence is at dist ance
of about five minutes and no explanation in this regard has been offered by complainant.
The learned counsel relied on the judgment reported in 1994 PCr.LJ 1068.
On the other hand, the learned P. -G. opposed the bail application and
contended th at the learned trial Court has rightly dismissed the application of applicant,
as during the course of parade, the applicant was identified by complainant.
5. I have carefully considered the contentions put forth by the learned counsel for the
parties and perused the record made available to me. It is case of applicant that he has
been falsely implicated in the commission of offence, in this context it is to state that the
record is silent about any enmity in between applicant and complainant, question of f alse
implication is out of question applicant was identified by complainant during the course
of identification prade: --
(i) The contention of learned counsel with regard to in applicability of section 17(3)
Harraba is prima facie unacceptable, as the moto rcycle, mobile etc. were snatched
by show of force particularly by showing pistol to complainant, hence there is
absolutely no force in contention of learned counsel for applicant; as such this
argument is repelled.
(ii) As far as legality of identificatio n parade by police is concerned, this
submission is contentious, therefore, at bail stage any observation may prejudice
the case of either party.
(iii) The point of delay is of no consequence as in the circumstance of case no delay
can be attributed t o have occurred, hence this argument is of no avail; even
otherwise if one is not entitled to concession of bail on merits, mere delay in
lodging of F.I.R. does not constitute a ground for bail, therefore, this submission is
bound to fail.
The tentative a ssessment of material available on record, fully implicates the
applicant in the alleged commission of offence, hence no sufficient and reasonable
ground is available for believing that the applicant is not guilty of the offence, with
which, he has been ch arged. There is no cavil with the legal proposition that deep
appreciation of evidence at bail stage is not warranted. So far collected material and its
tentative assessment is concerned it can be easily concluded that it was rightly
appreciated by the tri al Court. Admittedly bail comes within the discretion of the Court
and once the discretion was exercised rightly, within the parameter prescribed by law and
approved by superior courts, then the superior Courts are always reluctant to interfere
with such d iscretionary order. As regards the authority referred to by the learned counsel,
the same is distinguishable on facts and circumstances of the case. So in such view of the
matter, I am not inclined to disturb the orders passed by Additional Sessions Judge -II,
Quetta on 25th November, 2009. Resultantly, the application is dismissed, however; the
applicant is at liberty to move fresh application for grant of bail, after examination of
complainant, if fresh ground becomes available to him in the light of state ment. Needless
to observe that observations made hereinabove are tentative in nature and shall not
prejudice the merits of the case.
H.B.T./27/Q Bail refused.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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