MUHAMMAD HASSAN Versus State

ORDER

1. SALMAN TALIBUDDIN, J.--- This application under section 497, Cr.P.C. was heard on 15-6-2009 on which date a short order was passed admitting the applicant/accused was admitted to bail in the sum of Rupees 200,000 and P.R. Bond in the like amount to the satisfaction of the trial Court. The following are the reasons for the short order dated 15-6-2009.

2. By this application the applicant/ accused Muhammad Hassan son of Obhayo sought bail in Crime No.12 of 2009 Police Station Tando Ghulam Haider, District T.M. Khan under section 17(3) of the Offences Against Property (Enforcement of Hadood) Ordinance, 1979 and sections 337-A(i) and (ii), P.P.C.

3. The F.I.R. in this case was lodged at 1930 hours on 4-2-2009 by Muhammad Ashraf son of Luqman. According to him, on 20-1-2009 he and his cousin Soomar son of Ghulam Muhammad Chang went to Karyo Ghanwar on a motorcycle for some work. On their way back from Karyo Ghanwar a tire got punctured and Soomar asked Muhammad Ashraf to walk back while he took the motorcycle to have the tire repaired.

4. When Muhammad Ashraf reached the bridge at 26-AR, four persons came out of the sugarcane crops and surrounded him. Of the four, Muhammad Ashraf identified Muhammad Hassan (the present applicant) who was armed with a hatchet, Abdul Rehman son of Photo who was also armed with a hatchet, and Rasul Bux son of Mamoon who was armed with a lathi. The fourth person, who Muhammad Ashraf did not know by name but will be able to identify if seen again, was unarmed.

5. Thereafter Muhammad Hassan and Abdul Rehman. Attacked Muhammad Ashraf inflicting blows on his head with the back of their hatchets. Muhammad Ashraf fell down as a result of these blows and blood began to ooze out from the injuries sustained by him. During this time he was also deprived of Rupees 5000 (Rupees five thousand) in notes of different denominations by them. At this time one Muhammad Ibrahim son of Haji Gul Muhammad came along on his motorcycle and the accused Muhammad Hassan and Abdul Rehman ran away into the sugarcane crops on seeing him.

6. Muhammad Ibrahim then took Muhammad Ashraf on his motorcycle to the otaq of Fakeer Muhammad Chang where they were met by other persons to whom Muhammad Ashraf narrated the facts noted above. From there he went to P.P. Moya and proceeded to hospital for medical treatment after receiving a letter for urgent treatment. After having recovered sufficiently and receiving the M.O. Letter No. 126/28 dated 31-1-2009 Muhammad Ashraf lodged the F.I.R. on 4-2-2009.

7. The applicant was arrested on 12-2-2009 and after completing the investigation challan was submitted on 26-2-2009. Thereafter, on 7-3-2009 the applicant moved a bail application before the learned Sessions Judge Tando Muhammad Khan which was rejected vide order dated 31-2-2009.

8. Amongst the grounds relied upon by learned counsel in support of this application are: agricultural lands belonging to the applicant and the complainant are in the same deh and the F.I.R. was lodged after they exchanged some hot words on the water rotation; the complainant's story that he went to the otaq of Fakeer Muhammad Chang before seeking medical treatment for his wounds that were oozing blood does not accord with the common course of human affairs; section 17(3) of the Offences against Property (Enforcement of Hadood) Ordinance, 1979 has been added in order to make the case non-bailable; section 17(3) is not applicable to this case since the mandatory requirement of two Muslim adult male eye-witnesses, other than the victim of the theft, about whom the Court is satisfied, having regard to the requirements of tazkiyah-al-shuhood, that they are truthful persons and abstain from major sins, have not been met in this case; according to the F.I.R. itself the alleged incident was un-witnessed since Muhammad Ibrahim (who is the complainant's relative) came after the incident is alleged to have taken place; even otherwise, there nothing on the record that would show that the amount alleged to have been taken falls within the value of nisab set out in section 6 of the Offences Against Property (Enforcement of Hadood) Ordinance, 1979; the F.I.R. was lodged seven (07) days after the date of the alleged incident and the delay has not been satisfactorily explained; according to the section 161 statement of the only eye-witness (Muhammad Ibrahim) all four persons inflicted injuries to the complainant which is contradictory to the statement in the F.I.R. according to which the injuries were inflicted by the applicant and by Abdul Rehman; even otherwise, the F.I.R. and section 161 statements only contain generalized statements regarding the alleged injuries and robbery without identifying which of the accused caused the injuries said to have been suffered by the complainant and which of them committed the alleged offence of robbery; no recovery of the amount allegedly robbed has been made from the applicant; the challan has been submitted in the trial Court and the applicant, who has been in jail since 12-2-2009, is no longer required by the police for investigation and interrogation; and that the case against the applicant is clearly one of further inquiry entitling him to bail as a matter of right.

9. In support of his submissions learned counsel for the applicant has relied on the judgment in Arib and 3 others v. The State, 1988 PCr.LJ 1766, where in a case under section 17(3) of the Offences against Property (Enforcement of Hadood) Ordinance, 1979 it was held that Hadd could not be exacted on an accused in circumstances where only one eye-witness of the occurrence was available and, therefore, the condition of two Muslim adult male witnesses was not fulfilled, and the ornaments alleged to have been robbed had not been weighed nor had the price of the robbed property been ascertained in order to see whether the weight or value exceeded Nisab as provided in the Ordinance.

10. Learned counsel has relied on the following judgments in support of his contention that an unexplained delay in lodging the F.I.R. is sufficient ground in and of itself to grant bail to an accused: Karim Haider v. The State 1986 SCMR 938; Ali Muhammad v. The State PLJ 1975 Cr.C (BJ) 27; Mhanda v. The State 1994 PCr.LJ 86; Abdul Hameed Khan v. The State 1978 PCr.LJ 150; Shah Ali and 2 others v. The State 1976 PCr.LJ 1021; and Muhammad Ramzan v. The State 2008 MLD 397.

11. Learned counsel has relied on the following judgments in support of his submission that bail in cases of further inquiry is to be granted as a matter of right and not by way of any concession or grace and that the benefit of doubt must be resolved in favour of bail: Muhammad Asif v. The State 2007 PCr.LJ 1292; Muhammad Abbas v. The State PLD 1988 SC (AJ&K) 14; Amir v. The State PLD 1972 SC 277; Syed Amanullah Shah v. The State PLD 1996 SC 241; and Nooruddin v. The State 2005 MLD 1267.

12. In response learned counsel for the State submitted that the applicant has been named in the F.I.R. and that a specific role in the commission of the offence has been assigned to him. He further submitted that the provisions of section 17(3) of the Offences Against Property (Enforcement of Hadood) Ordinance, 1979 were fully applicable to this case disentitling the applicant from the concession of bail.

13. Having carefully considered the submissions made by counsel for the parties and having gone through the record on file I am satisfied that this is a case of further inquiry on, inter alia, the ground that it has yet to be determined who amongst the applicant and Abdul Rehman actually caused the injuries allegedly inflicted on Muhammad Ashraf and which of the two committed the alleged robbery. Further, the condition precedent to the application of section 17(3) of the Offences Against Property (Enforcement of Hadood) Ordinance, 1979 as set out in sections 6 and 7(b) thereof do not appear to have been met in this case.

14. While noting that the findings above are only tentative in nature, I do not see any reason at this stage to deny bail to the applicant in terms of the order dated 15-6-2009 noted herein above.

15. M.W.A./M-45/K Bail granted.