P L D 1994 Peshawar 84 (PLP)

S. 497

Penal Code (XLV of 1860), S. 380

Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 9/14

Bail, grant of--Accused being a servant of the victim, imposition of Hadd was not likely and his case fell under Ta'zir beyond the prohibitory clause of S. 497, Cr.P.C.--Entire recoveries having been made, accused was not required for investigation which was complete

Accused was released on bail in circumstances. Mian Mohibullah Kaka Khel for Petitioner. Habibur Rehman Khan for the State. Date of hearing: 26th January, 1994. While Brigadier (Retd.) Doctor Sikandar Khan alongwith his wife on 7-11-1993 went out for a walk at 18-30 hours from his house at Shami Road, a theft of various valuables, cash amount and golden ornaments was found committed on their return at 21-00 hours. A report was lodged at Serial 738 of Police Station East Cantt. Peshawar.

2. The investigation revealed the involvement of his Cook, namely Ghulam Habib petitioner, who has been refused bail by the two Courts below and hence this application.

3. From the perusal of record it reveals that the investigation resulted into the arrest of the petitioner ten days after the occurrence on 17-11-1993. He made a confession before police in support of which the entire stolen articles were recovered on the very next day, i.e. 18-11-1993 whereafter his confession under section 364, Cr.P.C. was also recorded before Magistrate. Immediate recovery at his pointation and that too from the house of his mother-in-law at Kohat renders the confession to be true as well as voluntary, at least at this stage. The accused is, pr4na facie, linked with the commission of theft.

4. It is obvious that the confession in a theft case would be material only if made before the trial Court and hence the matter of confession can be deferred to the conduct of trial. This, I specifically mention in order to observe that at this stage one cannot determine that the case would fall under Hadd on the basis of confession on record. Moreover, it is an admitted fact that the petitioner was a servant of the victim and hence the imposition of Hadd is not at all likely even at the trial stage. The case would certainly fall under Ta'zir and so beyond the prohibitory clause of section 497, Cr.P.C. As the entire recoveries have been made, investigation is complete and the accused is no more required to be further detained for such purpose, therefore, he is directed to be released on bail for offences under section 3130, P.P.C. read with sections 9/14 of Ordinance VI of 1979 with reference to F.I.R. No. 738 dated 7-11-1993 provided he furnished a bail bond in the sum of Rs.60,000 with two local, reliable and resourceful sureties to the satisfaction of Ilaqa Magistrate alone. N.H.Q./1522/P??????????????????????????????????????????????????????????????????????????????????????????????? Bail allowed,