2009 PLP 213 (YLR)

MUHAMMAD ALAM KHAN, J.

Having unsuccessful to secure bail from the Court of Judicial Magistrate/Senior Civil Judge/Aala Illaqa Qazi Batkhela and Sessions Judge/Zilla Qazi Batkhela vide orders dated 23-5-2008 and 17-6-2008, respectively the petitioners Zafar Khan and Ismail Khan sons of Ghiilam Sakhi residents of Afghan Camp Batkhela Malakand, who are involved in case F.I.R. No.85 dated 10-5-2008 under section-14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and sections 457/148/149, P.P.C. of Police Station Batkhela (Malakand), have come to this Court within a prayer for their release on bail.

2. Facts gleaned from the F.I.R. lodged by Anees son of Saeed-ur-Rehman resident of Mohallah Saeed Abad, Batkhela Malakand are that his father is serving at Saudi Arabia for earning his livelihood, last night he had locked the main and small gate of his house and he along with his mother and other minor brothers and sister were sleeping in the middle room of the house. That at 2.00 `O' clock, due to the noise of the door of the room, they woke-up and saw that some nine persons, out of which, one was tall person and the other eight were of small stature, present in the room, while the tenth one was standing in veranda. That the accused threatened them to keep quiet and started searching the house. The accused took 27 tolas golden ornaments, two number of Kalashnikoves, one was China and the other was Russian made along with six chargers valuing Rs.1,48,000, two numbers of pistols of 30 bore, one was China and the other was Russian made valuing Rs.23,000 two number Rado Watches valuing Rs.60,

000. The accused then decamped from the spot by breaking open the small gate of the house. It was averred, that he can identify the accused. Delay in lodging the F.I.R. was explained due to night occurrence and fear of the accused.

3. That during the investigation on 14-5-2008, the complainant recorded his statement under section 164, Cr.P.C. in which he charged the present petitioners Zafar Khan and Ismail and his brother Musa Khan, absconding accused.

4. Learned counsel for the accused Mr. Hussain Ali, Advocate, submitted at the bar that the accused has not been charged in the F.I.R. and they were charged in statement recorded under section 164, Cr.P.C. which is recorded after a delay of four days i.e. 14-5-2008.

5. That the Kalashnikov was recovered from the house of Musa Khan and not from the possession of the present petitioners and thus the accused/petitioner are entitled to the concession of bail. It was also argued that petitioner is a minor boy and a student of Oxford Education Academy as per certificate dated 20-6-2008 annexed with the petition.

6. On the other hand Mr. Ikramullah Khan, A.A-G, assisted by Sahibzada Asadullah Khan, Advocate, counsel for the complainant argued that the accused are charged for the heinous offence. They have entered into the house with intention of robbery and they have broken the lock of the house. They were charged in the statement recorded under section 164, Cr.P.C. by the complainant. Furthermore, the recovery of Kalashnikov from Musa Khan, brother of the accused, shows the involvement of the accused/petitioners in the present case, hence they are not entitled to the concession of bail. Reliance was placed on the dictum rendered in the case of Shah Jee v. The State 1999 PCr.LJ 1062 and an unreported judgment of this Court Ateequllah v. The State and others Criminal Misc No.389 of 2008 decided on 2-6-2008.

7. I have given my anxious consideration to the facts of the case and have gone through the record of the case.

8. Admittedly, the accused/petitioners have not been charged in the F.I.R. and they have not been subjected to test identification parade. The accused/petitioners have not been identified by any of the inmates of the house, who were present at the time of alleged occurrence. No recovery of the stolen articles have been made from the possession of the accused/petitioners. The kalashnikov was recovered from the house of one Musa Khan and not from the possession of the present petitioners, which makes the case of petitioners one of further inquiry as held in case of Khakan and another v. The State and another reported in 1999 PCr.LJ 198 and Nadeem Ali and others v. The State, 2000 PCr.LJ 159 and thus, the petitioners are entitled to the concession of bail.

9. In view of the facts and circumstances narrated above, I accept the present petition, the petitioners be released on bail provided they furnish bail bonds in the sum of Rs.3,00,000 (Three hundred Thousands) with two sureties each in the like amount to the satisfaction of Illaqa Judicial/Duty Magistrate, Batkhela Mala kand, who shall ensure that the sureties are local, reliable and men of means.

10. Above are the reasons for my short order dated 25-7-2008. H.B.T./168/P Bail granted.