AZIZ vs THE STATE

ORDER

1. ' MUHAMMAD NADIR KHAN, J.--- Accused has been arrested in-case F.I.R. No,13 of 2006 under sections 147, 148, 149, 365, P.P.C. Registered with Police Station Sibi on 13-3-2006 at 12-30 p.m. On the report of Watar Khan stating that on 28-1-2006 at about 12-00 noon accused/applicant along with 20 others equipped with fire-arms kidnapped his son Sher Ali who was in possession of Rs,25,000 and was wearing citizen watch and gold ring. The eye-witnesses of the incident were stated to be Sher Dil and Attaullah.

2. ' Accused/applicant surrendered himself before SessiOns Judge, Sibi and filed application for grant of pre-arrest bail. The application was rejected by means of order, dated 11-5-2006.

3. Accused/applicant after his arrest filed application for his release on bail, but his said plea was also rejected by Sessions Judge, Sibi by means of order, dated 3-6-2006, whereafter he approached this Court for his release on bail by filing of the application in hand.

4. ' Mr. Shabbir Rajput, Advocate counsel for accused/applicant submitted that F.I.R. Has been lodged with unexplained delay of 44 days giving rise to the probability that the accused were nominated after due consultation, such probability finds further support by fact that complainant was not eye-witness. The contents of the F.I.R. And evidence do reflect commission of Haraabah. The allegations made by the complainant at the best makes out a case under section 365, P.P.C. And punishment for the same is not covered by the prohibitory clause of section 497, Cr.P.C. Besides the accused/applicant himself surrendered before the Sessions Judge, Sibi and he never remained absconder, which fact is supported by the attendance of register PPL Sibi. Above all the complainant has filed affidavit stating that the accused/applicant was nominated due to some misunderstanding, whereafter the case of prosecution against accused/applicant becomes of further inquiry entitling him for his release on bail as a matter of right.

5. ' Mr. Abdul Rahim Mengal learned A.A.-G. Opposed the application and argued that accused/applicant has been nominated in the F.I.R. Accused/applicant failed to bring on record any mala fide or ill-will on the part of complainant or the eye-witnesses for his false involvement in the crime. The victim of the incident, i.e. Sher Dil was in possession of Ri.25,000 a wrist watch and gold finger ring, hence his kidnapping not only attracts provisions of section 365, P.P.C. But also provisions of section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance, which is covered by the prohibitory clause of section 497, Cr.P.C. Hence accused/applicant cannot be considered to be entitled for his release on bail.

6. Submissions made by the learned counsel for the parties for the parties considered. Record of the,case perused. According to the F.I.R. The alleged incident of kidnapping took place on 28-1- 2006 while the F.I.R. Was lodged on 13-3-2006, i.e. After 44 days of the alleged incident. The F.I.R.

7. Further reflects that the complainant Watar Khan was not eye-witness of the incident as he was not present with his son at the relevant time. The Tye-witnesses are stated to be Sher Dil and Attaullah who have been examined after 44 days of the incident. Both the eye-witnesses in their statements stated that after the incident they went to Jhatpat and after registration of the case they accompanied the Investigating Officer to the place of incident where the map and memo. Of inspection of the place of incident was prepared. However, their statements do not reflect as to when they informed the complainant about the incident and how they reached the place of incident after 44 days with Investigating Officer at the time of inspection of the place of occurrence. In such circumstances the lodging of the report with unexplained delay of 44 days and presence of both the eye-witnesses at the time of inspection of the place of occurrence with Investigating Officer seems to be somewhat unusual. It is admitted feature of the case that the accused/applicant himself appeared before the Sessions Judge, while his being employee of PPL is not disputed. Nothing has been brought on record to show that after the date of alleged incident the applicant remained absent from his duty. The documents filed by the accused/applicant rather show that he had been attending his duty not only on the day of incident, but even subsequently. The complainant himself is not supporting the allegations made in the F.I.R. As he tiled affidavit wherein nomination of accused/applicant was stated to be on account of some misunderstanding. The complainant himself appeared before the Court on 22-6-2006 and admitted the contents of the affidavit. In such circumstances without making any observations about applicability of the provisions of section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance, the case of prosecution against accused/applicant is found to be of further enquiry entitling him for his release on bail as a matter of right. Accordingly, he is ordered to be released on furnishing two sureties each in the sum of Rs,one lac with P.R. Bond of like amount to the satisfaction of Sessions Judge, Sibi.

8. ' The observations made hereinabove are tentative in nature which are not to influence merits of the case.