MUHAMMAD ILYAS alias GUDDU vs THE STATE and another
This matter concerns a bail application filed by the accused-petitioner, Muhammad Ilyas, who was refused bail by lower courts regarding a case registered under Section 411 of the Pakistan Penal Code 1860 and Sections 9/14 of the Offences Against Property (Enforcement of Hudood) Ordinance 1979. The core legal question was whether the petitioner was entitled to the concession of bail given the circumstances of the case and the nature of the alleged offence. The Court held that the petitioner should be admitted to bail. The reasoning was based on the significant, unexplained delay of five months in lodging the First Information Report, the absence of the requisite evidence of two Muslim adult male witnesses necessary for a Hadd offence, and the observation that if the offence is punishable as Tazir, it does not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898. Furthermore, the Court noted that the investigation was complete and continued incarceration would serve no purpose. The key principle established is that where the statutory requirements for Hadd are not met, the offence may be treated as Tazir, potentially taking it outside the prohibitory clause of bail provisions.
- Does the absence of two Muslim adult male witnesses for a theft charge under the Offences Against Property (Enforcement of Hudood) Ordinance 1979 automatically convert the offence to Tazir?
- Does an offence punishable as Tazir under the Offences Against Property (Enforcement of Hudood) Ordinance 1979 necessarily fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- Is an unexplained five-month delay in lodging an FIR a valid ground for granting bail?
- Section 411, Pakistan Penal Code 1860
- Section 9, Offences Against Property (Enforcement of Hudood) Ordinance 1979
- Section 13, Offences Against Property (Enforcement of Hudood) Ordinance 1979
- Section 14, Offences Against Property (Enforcement of Hudood) Ordinance 1979
- Section 7, Offences Against Property (Enforcement of Hudood) Ordinance 1979
- Section 497(1), Code of Criminal Procedure 1898
' Muhammad Ilyas alias Guddu accused-petitioner facing prosecution in case F.I.R. No,15, dated 5- 3-2001 under section 411, P.P.C. Read with sections 9/14, Offences Against Property (Enforcement of Hudood) Ordinance, 1979 Police Station, Doongagali, was refused bail by the Courts below. Now he has approached this Court for the same concession.
2. Muhammad Hanif complainant made a written report to the police on 28-2-2001 to the effect that he is residing at Rawalpindi and used to come to his village during the summar vacation of his children. On 26-9-2001 when he came to his village/house, he saw that the window of the kitchen of his house has been broken and his household articles were lying scattered. On further search he found his household articles valuing Rs,15/16,000 were missing. He after his satisfaction charged the accused-petitioner alongwith two others for commission of theft from his house. On the basis of the above written report of the complainant a case under the above sections of law was registered against the accused.
3. I have heard the learned counsel for the parties and have gone through the record of the case with their assistance.
4. It appears from the record that the report of the occurrence was not lodged with promptitude because the complainant for the first time came to know about the theft from his house when he came to his house on 26-9-2000 but the matter was reported to the police on 28-2-2001 after about five months and for this long delay no plausible explanation has been given by the complainant. Moreover, it is not disputed that for the offence of theft liable to Hadd the evidence of two Muslim adult male witnesses is required which is not available in the instant case. In these circumstances, it is yet to be seen whether the offence would be punishable under section 9 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, Section 13 of the Ordinance provides that whoever commits theft which is liable to Hadd, or for which proof in either of the forms mentioned in section 7 is not available, or for which Hadd may not be imposed or enforced under this Ordinance, shall be liable to Tazir. Section 14 of the Ordinance provides that whoever commits theft liable to Tazir shall be awarded punishment provided for the offence of theft in the Pakistan Penal Code. In case the offence committed by the accused is punishable as Tazir, the punishment provided for the offence of theft in the Pakistan Penal Code would not fall within the prohibitory clause of section 497(1), Cr.P.C. Furthermore, section 411, P.P.C. Is also bailable. The investigation in the case is complete and no fruitful purpose would be served to keep the petitioner in jail for indefinite period. In these circumstances and without expressing any opinion on the merits of the case, I accept this bail application and admit the accused-petitioner to bail provided he furnishes bail bonds in the sum of Rs,20,000 with two sureties each in the like amount to the satisfaction of Illaqa/Judicial Magistrate.