ORDER SHEET
IN THE HIGH COURT OF SINDH
CIRCUIT COURT, HYDERABAD
Criminal Bail. Appl. No.660/2009
Order with signature of Judge
21.12.2009
Syed Waseem Shah Advocate for Applicant.
Mr. Shahid Ahmed Shaikh Assistant Prosecutor General Sindh for the State.
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Ahmed Ali Shaikh J: Applicant Ahsan is facing trial in crime no.60/2009 for offence u/s 17(3) Offence Against Property (Enforcement of Hudood) Ordinance, 1979 and 392 PPC in the court of Additional Sessions Judge Tando Muhammad Khan seeks post arrest bail.
2. The applicant approached the trial court for bail but could not succeed as his bail plea was turned down by trial court vide order dated 17.09.2009.
3. The facts giving rise to the present application are that on 19.04.2009 at 2.00 p.m, accused Ahsan Ali and Sharif Mallah duly armed with pistols robbed cash Rs.11,000/-, a mobile phone and 20 suits of ladies clothes from the complainant and his brother Badaruddin within the jurisdiction of Police Station Bulri Shah Karim. The P.Ws Muhammad Ali and Janoo also identified the culprits. The complainant approached the Nek Mard Audho Brohi but could not meet him as he was not available and later on, on his advise, he approached the police.
4. It is inter alia contended by the learned counsel for the applicant that the F.I.R is belated by three days without satisfactory explanation; that one of the P.Ws is brother of the complainant whereas rest are his friends; that no recovery of crime weapon or robbed property has been affected from the applicant; the parties were known to each other even then the complainant approached the police after delay of three days, therefore, possibility of consultation, deliberation and false implication of the applicant in the above case cannot be ruled out. It is further contended that from the contents of F.I.R it is yet to be determined whether the alleged offence falls u/s 17(3) of Offence against Property (Enforcement of Hudood) Ordinance, 1979 or under section 392 PPC. In support of his contention, learned counsel relied upon the case of (i) Noor Nabi & another Vs. The state (2007 YLR 2340), (ii), Muhammad Akram Vs. The State (1994 P Cr. L J 471).
5. Conversely Mr. Shahid Hussain Shaikh APG for the State opposed the Bail Application on the ground that name of the applicant appears in the F.I.R and the delay in lodging the F.I.R is properly explained.
6. Heard learned counsel for the parties and perused the record available on the file.
7. No doubt, the name of the applicant transpires in the F.I.R but the same was lodged after delay of three days and no plausible explanation in this regard is offered by the complainant. Since the complainant and accused were known to each other, even then the complainant remained mum for three days, therefore, possibility of consultation and deliberation to implicate the applicant cannot be ruled out. During investigation, police could not recover any incriminating article from the applicant. Per contents of F.I.R except complainant, his brother Badaruddin is been shown as eyewitness of the occurrence, whereas P.Ws Muhammad Ali and Janoo are not said to be eyewitnesses of the occurrence but complainant has categorically stated in the F.I.R that they also identified the accused. Section 7 of Offence against Property (Enforcement of Hudood) Ordinance, 1979 provides the proof of theft liable to Hadd. For the sake of convenience same is reproduced herewith:-
“S.7. Proof of theft liable to Hadd: The proof of theft liable to “Hadd” shall be in one of the following forms namely:-
(a) The accused pleads guilty of the commission of theft liable to “Hadd” and
(b) Atleast two muslim adult male witnesses, other than the victim of the theft, about whom the court is satisfied, having regard to the requirements of Tazkiyah-al- shuhood, that they are truthful persons and abstain from major sins (Kabair), give evidence as eyewitnesses of the occurrence”;
8. From the plain reading of section 7 of Offence against Property (Enforcement of Hudood) Ordinance, 1979 the applicability of section 17(3) of Offence against Property (Enforcement of Hudood) Ordinance, 1979 requires further probe and it is yet to be determined whether the offence falls u/s 17(3) of Offence against Property (Enforcement of Hudood) Ordinance, 1979 or 392 PPC. Section 392 PPC provides alternate sentences, which is punishable for a term not less than 3 years nor more than 10 years.
9. Following the dictum laid down by this court in case of Shehmoro Vs. The State (2007 U.C 875) where the bail was granted to the applicant while taking into consideration the lesser sentence of four years, out of alternate sentence of ten years and in the case of Abdul Ghani & another Vs. The State (1986 SCMR 1174) where the accused were directly charged in F.I.R and crime weapon found lying in drain and not recovered from accused, they were granted on bail by Honourable Supreme Court, I am of the considered view that the case of the applicant requires further inquiry and he is entitled to the concession of bail. I, therefore, admit the applicant on bail subject to furnishing his solvent surety in the sum of Rs.100,000/-(One hundred thousands) and P.R. bond in the like amount to the satisfaction of the trial court.
The Criminal Bail Application No.660/2009 stands disposed of.
JUDGE
A.K