ALI KHAN and anothers vs THE STATE
This criminal bail application arises out of Crime No. 9 of 2006 registered at Police Station Lakhi Gate, Shikarpur, under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, concerning allegations of house trespass and robbery of gold, cash, and prize bonds. The core legal question was whether the applicants were entitled to post-arrest bail considering their non-nomination in the FIR, the absence of names of identification dummies in the mashirnama, and the lack of any recovery from them. The Sindh High Court held that the applicants made out a case for further inquiry and admitted them to bail. The key principle laid down is that where an accused is not named in the FIR, no recovery is effected, and doubts exist regarding the identification parade procedures and the applicability of penal provisions without supporting eyewitness accounts, the accused becomes entitled to the concession of post-arrest bail.
- Whether an accused not named in the FIR is entitled to bail when no recovery is effected from him?
- Does the failure to mention the names of dummies in the mashirnama of an identification parade affect the case for bail?
- Whether bail can be granted when the applicability of section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 requires further inquiry in the absence of eyewitnesses?
- Section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance 1979
ORDER
1. ' KHILJI ARIF HUSSAIN, Dismissed having become infructuous.
2. The applicants have requested for bail in crime No,9 of 2006, registered under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 of Police Station, Lakhi Gate, Shikarpur.
2. ' As per F.I.R. Registered on 8th March, 2006 at. About 11-30 a.m., three persons entered into the house of the complainant and on the basis of the T.T. Pistols th,,'y took away four gold sets weighing 40 tolas, Rs,2,96,000 cash and prize bonds of Rs,70,000. The applicants were arrested after 14 days of lodging the F.I.R.
3. ' The learned Advocate for the applicants argued that the names of the applicants do not appear in the F.I.R. And the applicants have been arrested on the basis of the alleged identification parade.
4. It is contended by the learned Advocate for the applicants that the names of the dummies were not mentioned in the mashirnama of identification.
5. ' The learned State counsel contended that the applicants were arrested after 14 days of the lodging of the F.I.R. And duly picked up in the identification parade and that "Hulias" of the applicants are fully given in the F.I.R.
6. ' I have taken in consideration the respective arguments advanced by the learned Advocates for the parties and perused the record.
7. ' It appears that though the applicants were arrested after 14 days but the names of the dummies are not mentioned in the mashirnama of identification and further no recovery has been effected so far from the applicants. It is yet to be decided whether section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, is attracted to the facts of the present case, particularly, in the absence of two eyewitnesses. Since no recovery has been effected from the applicants nor their names appear in the F.I.R., the applicants are admitted to bail subject to furnishing surety in the sum of Rs,1,00,000 each and P.R. Bond in the like amount to the satisfaction of the trial Court.