2008 PLP 2384 (YLR)

MUHAMMAD ALAM KHAN, J.

Petitioner, Khalid Usman, seeks his release on bail in case F.I.R. No.102 dated 11-3-2008 registered under section 17(3)(2) Harrabah, Offences Against Property (Enforcement of Hudood) Ordinance, 1979 in Police Station Gomal University D.I. Khan, as he has failed to get the said concession from the Courts of learned Judicial Magistrate-III and learned Additional Sessions Judge-III Dera Ismail Khan vide orders dated 10-5-2008 and 26-5-2008 respectively.

2. As per F.I.R. lodged by Ghulam Farid in injured condition in the emergency ward of Civil Hospital Dera Ismail Khan on 1-3-2008 at 0035 hours, he along with Javed had brought sheep herd to the Farm where his brother Umer Khitab as a Baildar, Misal Khan a Cook and Afzal Punjabi an Account Officer along with other labourers were present, while the complainant was in an independent courtyard. At about 10-00 hours, he heard fire shots due to which he rushed towards the Haveli of Afzal Punjabi and saw three persons by features Pathan.' Of them one was of high height while the other two were of small. The man of high height fired at him with which he was hit and threatened him to go back whereafter the accused took away the motorcycle of Afzal Punjabi, his mobile phone and Rs.700 cash along with his shirt. His report was accordingly registered against unknown persons.

3. Learned counsel for the petitioner argued that the petitioner is innocent and falsely roped in the offence for ulterior motive; that the occurrence is of night and the report was lodged against unknown persons; that the accused/petitioner is belatedly charged by the complainant in his supplementary statement recorded under section 161, Cr.P.C. after about one month and eight days; that no source of satisfaction is given by the complainant; that the petitioner is not directly charged by the complainant; that nothing incriminating has been recovered from him' nor he has made any extra judicial confession despite the fact that he had remained in police custody for two days and that investigation in the case is complete and the petitioner is no more required for the same purpose.

4. The learned Deputy Advocate-General resisted the application on the grounds that the offence falls under the prohibitory clause of section 497, Cr.P.C. the petitioner is directly nominated by the complainant in his subsequent statement before the police recorded under section 161, Cr.P.C. and identified in the Identification parade conducted by the judicial Magistrate.

5. On 19-6-2008 complainant Ghulam Farid son of Muhammad Hanif, appeared before this Court and submitted compromise that due to the intervention of Gul Khan son of Baran, he has effected compromise with the accused/petitioner and has forgiven him in the name of Allah Almighty. In this respect the statements of complainant and the Elder of Locality, namely, Baran, were recorded and placed on file. Though the offence with which the accused-petitioner is charged is not compoundable, but the same can be taken into consideration along with other material facts available on the record.

6. I have considered the arguments of the learned Counsel for the parties and gone through the record.

7. Admittedly, the occurrence had taken place at dark hours of the night where none was specifically charged by the complainant; the subsequent nomination by the complainant in his statement under section 161, Cr.P.C. was after a considerable unexplained delay of about one month and eight days; no incriminating material has been recovered from the direct and physical possession of the accused/ petitioner; and that despite having remained in police custody, the petitioner has not confessed to the guilt, are the grounds which, prima facie, makes the case of the accused/petitioner arguable for the purposes of bail.

8. This application is, therefore, allowed and the accused/petitioner is admitted to bail, subject to his furnishing bail bound, in the sum of rupees two lacs with two sureties each in the like amount to the satisfaction of Ilaqa/Judicial Magistrate. Above are the reasons for my short order of even date. H.B.T./104/P Bail granted.