1994 P Cr (PLP)

Sardar Muhammad Ishaq and Mehmood A. Qureshi for Applicants. S.Z.A. Qureshi for the State. The applicant Hasan Lasi son of Ibrahim Lasi and Ismail son of Noor Muhammad in Criminal Bail Application No.148 of 1994 and applicant Jan Muhammad alias Janoo son of Ishaque in Criminal Bail Application No.136 of 1994 are jointly facing trial for having committed an offence punishable under section 20, Offences against Property (Enforcement of Hudood) Ordinance, 1979, registered at Police Station Gulshan-e-Iqbal vide F.I.R. Crime No.695/1993. As both the bail applications arise out of the same F.I.R., the same are being disposed of by this consolidated order. The case of the prosecution is that on 20-12-1993, complainant Mashkoorullah had just left his house in his car which was being driven by his driver, when two unknown persons stopped the said car on gun point and took it away by force. Thereafter, the complainant lodged the report. Investigation of the case was taken up by A.S.I. Syed Qaiser Ali Shah. On 30-12-1993, the aforesaid three applicants were found sitting in the car of the complainant at Gulshan-e-Iqbal when they were arrested and thereafter they have been challaned by police. I have heard the learned counsel for the applicants and it was submitted that the learned trial Judge took an erroneous view by coming to the conclusion that the offence will fall either under section 412, P.P.C. or under section 20 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 as the evidence which could link the present applicant with the commission of the offence is not available in this case and therefore, this will be at the most a case under section 411, P.P.C. The contention raised by the learned counsel for the applicant has a lot of force and admittedly, there is no explanation on the record why an identification test was not held in this case in order to link up the present applicants with the commission of robbery of the complainant's car. In the absence of such an identification evidence, a lacuna remains in the prosecution case so far as the main offence is concerned. The result is that in the absence of identification test, all that the prosecution has been able to show is that the three applicants were found in possession of a motor-car which was stolen from the complainant but this will not mean that the same was stolen by the applicants. In the circumstances, the moot question will be whether the applicants are liable for offence under section 20, Offences Against Property (Enforcement of Hudood) Ordinance, 1979.or under section 411, P.P.C. and therefore, it is a case of further enquiry. Accordingly, bail is granted to the applicants in the aforesaid two bail applications on their furnishing one surety each in the sum of Rs.75,000 and P.R. bond in the like amount to the satisfaction of the Nazir of this Court. N.H.Q./H-376/K Bail allowed,