2003 P Cr (PLP)

Muzaffar Ali Leghari for Applicants. Mukhtiar Ahmed Khanzada for the State. Date of hearing: 13th December, 2001. The applicants Bashir and Jan Muhammad are facing their trial for an offence punishable under section 17(3) of the Offences Against Property (Enforcement of. Hudood) Ordinance, 1979.

2. It is alleged that on 26‑3‑1999 Sajjad Hussain son of complainant Abdul Sattar was going to his village on motorcycle when three persons intercepted him and asked him to leave the motorcycle. One of them was armed with pistol, the other had hatchet and the third one was riding a motorcycle. Their faces were muffled. Sajjad resisted, on that he was given a blunt sided hatchet blow and then motorcycle was snatched from him. The complainant tried to locate the motorcycle at his own level and ultimately on 23‑4‑1999 lodged F.I.R. at Police Station Kot Ghulam Muhammad. Applicant Jan Muhammad was arrested on 22‑3‑2001 and motorcycle was recovered from his possession, while Bashir was arrested in June, 2001.

3. Learned counsel for the applicant advanced the bail plea on the grounds that: (1) there is delay of 2 days in lodging of F.I.R., (2) the faces, of culprits were muffled, therefore, the present applicants could not be identified as culprits, (3) recovery of motorcycle has been made after a period of about 2 years which can at the most be a case under section 411, P.P.C. and (4) Bashir has been implicated on the basis of statement of co‑accused Jan Muhammad made during interrogation.

4. Mr. Mukhtiar Ahmed Khanzada, learned State Counsel opposed the bail on the ground that the motorcycle was recovered from Jan Muhammad and that Bashir was absconding even after submission of challan.

5. Admittedly, there is delay in lodging of F.I.R. but this delay is of no benefit to the applicants as even in the belated F.I.R. the applicants have not been nominated. However, I would agree with learned counsel for the applicants that since the faces of the culprits were muffled, the identity of present applicants as the culprits, in absence of other positive evid6nce, would require further inquiry. The fact of recovery of motorcycle after two years would at the most constitute an offence under section 411, P.P.C. which is punishable with three years only and does not fall within the prohibitory clause of section 497(1), Cr.P.C. As far the implication of applicant Bashir is concerned he has , been involved on the basis of statement of co‑accused made during interrogation which as held consistently by the superior Courts is inadmissible in evidence. The decision of Honourable Supreme Court in David 1baufer v. State SBLR 2001 SC 132 and 2001 PCrR 1578 may be relied on this point.

6. For the reasons stated above the applicants are entitled to grant of bail, the application is, therefore, allowed. The applicants be released on furnishing surety in the sum of Rs.1,00,000 each and P.R. Bond in the like amount to the satisfaction of the trial Court. H.B.T./B‑62/K Bail granted.