1986 PLP 1697 (MLD)

‑‑‑S. 498‑‑Offences Against Property (Enforcement of Rudood) Ordinance (VI of 1979), Ss. 7 & 17‑‑Bail‑‑Offence of "Haraba"‑‑Accused not named in first information report but picked out by complainant along during identification‑‑Accused remaining in custody of Police a week before identification parade‑‑Possibility of his having been shown to witness before identification parade not ruled out‑‑No stolen property recovered from accused and he was not a previous convict‑‑No male witness of occurrence produced‑‑Whether case was covered by S.17 of Ordinance V I of ' 1979, was also a moot point‑‑Bail granted to accused in circumstances. Mushtaq Raj for Petitioner. Kh. Hafeez Ullah for the State. Waseem Niaz alias Sami, petitioner, along with 4 others is accused of having committed the offence of "Haraba" and has been arrested in the case registered at Police Station Factory Area, Faisalabad, vide F.I.R. No.63, dated 27‑1‑1986, under section 17 of Offences Against Property (Enforcement of Hudood) Ordinance. 1979, at the instance of Mst. Aimna Bibi, complainant.

2. According to the complainant, she was present in her house alongwith her daughters Mst. Sakina and Mst. Zahida in the evening of 27‑1‑1986. At about 7‑00 p.m., three accused persons armed with deadly weapons broke into her house and at pistol point took away their ornaments of gold worth Rs.38,

500. It appears that during investigation the petitioner was arrested in another case F.I.R. No.170, dated 20‑5‑1986, by C.I.A. Staff, Faisalabad, during the first or second week .of March, 1986, and having obtained his remand to police custody for a number of days the police found the petitioner as innocent and got him discharged on 24‑3‑1986 from the Ilaqa Magistrate. The petitioner was then arrested the same day in the instant case by Factory Area Police and lodged in jail on 25‑3‑1986. In a test identification held in jail premises under the supervision of a Magistrate on 3‑4‑1986 wherein Mst. Amna, complainant, alone identified the petitioner besides one Muhammad Ashraf. It is noteworthy that although one Naseer Ahmad was also arrested in the case and was arrayed in the identification parade yet he was not identified by the complainant although said Naseer was the son of her husband's brother. 1t is, however, admitted that no recovery of stolen property has been effected from the petitioner.

3. The petitioner having unsuccessfully applied in the lower Court has approached this Court for the grant of bail. I have heard learned counsel for the parties and also perused the record.

4. The petitioner is not named‑in the F.I.R. He has been pick out by the complainant alone during the test identification but the petitioner admittedly remained in the custody of police a week be for the identification parade was held, therefore, the possibility of hi having been shown to the witness before the identification parade cannot be ruled out. The other two eye‑witnesses named in the F.I.R. did not take part in the identification parade. No stolen property has bee recovered from the petitioner. He is not a previous convict. It is also a moot point whether petitioner's case is covered by section 17 of the Ordinance or section 392/395 of Pakistan Penal Code because there is no male witness of the occurrence as required under section 7 of the Ordinance. In the circumstances, I. feel inclined to allow this petition. It is directed that the petitioner be released subject to his furnishing bail bonds in the sum of Rs. 20, 000 with two sureties each in the like amount, to the satisfaction of A.C./Duty Magistrate, Faisalabad. Bail granted.