1999 PLP 2586 (YLR)

A case under section 395/397, P.P.C., was registered against some unknown persons at the report of Javed Iqbal complainant vide F.I.R. No.233 of 1998, dated 25‑7‑1998 at Police Station Chhaanga Maanga District Kasur for an occurrence which took place during the night of the said date. The allegation against the petitioner was that he stood outside the house of the complainant while his co‑accused entered the premises in order to commit dacoity and thereby, allegedly caused injuries to Jaan Muhammad i.e., father of the complainant and also looted away a cash of Rs.120,

000. The learned Magistrate Section 30, before whom petition for post arrest bail was moved, granted bail to the petitioner and his co -accused Khalid on the ground that both of them were not named in the F.I.R., and that they were involved in the case through a supplementary statement of the complainant recorded after about two months of the occurrence. The other accused who had actually committed the occurrence after entering into the house were not traceable. The present petitioner and his aforesaid co- accused were allegedly involved on the basis of their extra‑judicial confession before Muhammad Rafique and Muhammad Ghaffar.

2. The complainant moved a petition for cancellation of their bails which was accepted by Khawaja Sharif, learned Additional Sessions Judge, Chunian vide his order, dated 25‑1‑1999 on the ground that the offence under section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 was prima facie made out from the statement of the witnesses against the petitioners and that the same was not triable by the Magistrate Section 30 as it was exclusively triable by the Court of Sessions. As such, the petition for cancellation of bail was accepted and the bail granted to the petitioner by the Magistrate was cancelled. Hence, this petition for post arrest bail.

3. Learned counsel for the petitioner has submitted that the petitioner was involved by the complainant in the case through sup plementary statement recorded on 6‑9‑1998 i.e., after two months of the actual occurrence; that the petitioner was involved only on account of suspicion although his identity was never established at the time of occurrence. Even otherwise, he stood outside the house and did not commit any overt act nor any thing was recovered from him. The alleged extra judicial confession made by the petitioner before Muhammad Rafique and Muhammad Ghaffar was not reliable as he did not admit his crime before them nor the other accused have been traced so far. Lastly, it was contended that the petitioner was not involved in any other case and that the learned Additional Sessions Judge fell in error to observe that section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 was attracted to the facts of the case.

4. Learned counsel for the State while opposing the petition has, however, admitted that the petitioner was not identified at the time of occurrence but was implicated on account of supplementary statement of the complainant recorded after about two months. The only evidence against him is his own extra‑judicial confession before Muhammad Rafique and Muhammad Ghaffar but it is not made clear in their statements as to when that confession was made. He has also admitted that nothing was recovered from the petitioner nor he has ever been convicted or involved in any other criminal case as per his instructions. The learned State counsel has, however, contended that the petitioner is not entitled to bail because after earning the concession of bail, he has threatened the complainant twice but has also submitted that there is no material available on the record about such threats nor there is any policy report on that point.

5. I have considered the foregoing submissions and find that the petitioner was not named in the F.I.R. His name was given by the complainant through a supplementary statement after two months and the evidence against him consisted of extra judicial confession which he had allegedly made before Muhammad Rafique and Muhammad Ghaffar P.Ws. but no date is indicated as to when that confession was made. It is clear that the case was initially registered under section 395/397, P.P.C., and the offence was never converted to section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and as such, the observation made by the learned Additional Sessions Judge while cancelling the bail of the petitioner was premature. Since the petitioner is not involved in any other case nor he has any previous history, therefore, he is admitted to bail in the sum of Rs.100,000 as directed by the learned Trial Court in its order, dated 19‑11‑1998. The order, dated 25‑1‑1999 cancelling the aforesaid bail made by the learned Additional Sessions Judge, Chunian is set aside and the petition is accordingly accepted. Q.M.H./M.A.K./M‑1038/L