1999 PLP 1226 (MLD)

Raja Muhammad Aslam for Petitioner. Ch. Muhammad Ayub for the Complainant. Syed Nayyar Hussain for the State. A case under section 382, P.P.C. read with section 17, Offences Against Property (Enforcement of Hudood) Ordinance, 1979 was registered at the report of Muhammad Taqi son of Bahadar Khan vide F.I.R. No.31, dated 28-3-1997. At Police Station, Kallar Syedan, Tehsil Kahuta, District Rawalpindi in which the complainant had alleged that he was present in his house on 19-3-1997. After about Maghrab prayer an unknown person entered his house and introduced himself as Khalifa of some Pir. The complainant welcomed that stranger by giving him warm hospitality. The aforesaid stranger went out of the house at 11-30 p.m. and after a short while again entered the house with two other strangers. All three of them over-powered the complainant and forcibly put cloth in his mouth. Thereafter, they removed Rs.42,000 from the pocket of his Salooka (Waist coat). They also snatched a wrist watch and also took away a brief-case from the room containing some documents. It was also contended that Khalifa of pir along with a person namely Sufi had visited the house of the complainant a few days prior to the occurrence at the instance of his maternal uncle Muhammad Afzal as they were allegedly arranging for the marriage of the complainant who was about 65 years of age.

2. The complainant expressed his suspicion that the occurrence was committed by the Khalifa of Pir Sahib and the person named Sufi. However, a supplementary statement was made by the complainant on 23-3-1997 in which he submitted that the aforesaid Sufi and others had committed the occurrence.

3. The learned counsel for the petitioner has submitted that offence under section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 was dropped and section 392, P.P.C. was substituted in its place while submitting report under section 173, Cr.P.C; that the petitioner remained unidentified throughout and was involved in the case due to suspicion; that the supplementary statement was made after four days of the occurrence and hence possibility could not be ruled out that it was tutored and deliberated; that the petitioner is behind the Bars since after his arrest on 29-6-1997; that the investigation is complete and nothing has been recovered from the petitioner for the occurrence in question. It was, therefore, contended that the petitioner was entitled to bail particularly when the police never got identification parade conducted so as to link the petitioner with the occurrence beyond any shadow of suspicion and doubt.

4. The bail petitioner was opposed by the learned State counsel assisted by the learned counsel for the complainant on the ground that though identification parade was never conducted to link the petitioner with the occurrence, but the complainant had clearly implicated him in the supplementary statement recorded after expiry of 4 days; that the remaining two accused are still at large and the police has not been able to arrest them; that challan is being sent to the Court concerned for trial and as such the petitioner had no case for bail particularly when he was a history-sheeter from Azad Kashmir and was also declared absconder in a case registered against him vide F. I. R. No. 190 of 1997 dated 20-11-1997 at Police Station, Kotli Azad Kashmir.

5. I have considered the above submissions and find that the petitioner is not named in the F.I.R. but only a suspicion was expressed against him which was elaborated through supplementary statement recorded after four days of the occurrence. Even in the elaborated statement the complainant had stated that he would be in a position to identify his culprits if they are produced before him. In the same statement he stated that through voices he could make out that the occurrence was committed by the petitioner and 2 others namely Muhammad Sarfaraz and Muhammad Amir, who had earlier visited him on 17-2-1997 alongwith two women as they were arranging for his marriage in lieu of Rs.30,000 and that they had seen the aforesaid amount with him. Later on the day of occurrence they had removed Rs.50,000 from his Salooka although in the original F.I.R. he had contended that he was deprived of Rs.42,

000. The perusal of supplementary statement aforesaid shows that the complainant came up with a different story and insisted that he would be in a position to identify the culprits correctly when they are produced before him. However, as stated above, the petitioner was never got identified from the complainant after his arrest. Likewise, nothing was recovered from him. The remaining two accused are still at large and the police has not been able to lay their hands on them. There is no satisfactory proof that the petitioner is an absconder in some case or that he is a history-sheeter from Azad Kashmir. It is, however, conceded that there is no conviction against him in the past. In such a situation and particularly when nothing is recovered from the petitioner and he is behind the Bars for the last about 8 months, it will be a case of further inquiry particularly in view of the F.I.R. and the supplementary statement made by the complainant after those are read together. I, accordingly, accept this petition and direct that the petitioner stall be released on bail against heavier surety in the sum of Rs.70,000 with two sureties each in the like amount to the satisfaction of ,learned trial Court. H.B.T./M-577/L Bail granted.