WAZIR and anothers vs THE STATE
This bail application arises out of Crime No. 7 of 2000 registered at Police Station Thebat for an offence under section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance, 1979. The core legal question concerns whether the applicants made out a case for post-arrest bail given the lack of identification and doubtful recovery for one applicant, and the absence of recovery or specific role coupled with delayed F.I.R. for the other. The Sindh High Court held that the case of both applicants called for further inquiry under the law, and granted them post-arrest bail subject to furnishing required sureties. The key principle laid down is that where recovery is doubtful due to lack of private mashirs and identification is missing, or where an accused is named in a delayed F.I.R. without any overt act or recovery, the case falls within the scope of further inquiry warranting the grant of bail.
- Whether the absence of an identification parade and a doubtful recovery make a case one of further inquiry for the purpose of bail?
- Does the lack of any recovery or specific role attributed to an accused named in a delayed F.I.R. justify the grant of bail?
- Can a recovery made in the absence of private mashirs from a commonly accessible place be considered doubtful?
- Section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance, 1979
- Section 161, Code of Criminal Procedure 1898
ORDER
' This bail application has been filed on behalf of the applicants Wazir son of Kadir Bux and Ali Baldish son of Yakoob who are involved in Crime No,7 of 2000 registered at Police Station Thebat for the offence under section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance, 1979.
2. Briefly the facts of the case are that complainant Khuda Bux Joyo lodged F.I.R. On 19-7-2000 with the above police station complaining that he is Manager at the Crush Machine of Sayed Jalal Mehmood Shah one Abdul Hakeem Girano is Munshi and Kamaluddin is Mechanic. They used to stay at the Crush Machine. On the night of 19-7-2000 after taking meals they went to sleep. He further stated that he kept the daily income of Rs,25,000 in different currency notes in the cupboard and hanged his gun bearing No,4490 SBBL with wall and kept the revolver alongwith 5 magazines out of which two bullets was loaded; in the drawer of a Table. They noticed some voice and woke up, they saw four persons wearing black clothes out of whom Makhan son of Haider armed with gun standing at the cot of Abdul Hakeem. Khuda Bux son of Yakoob Lund armed with gun standing near the cot of complainant, third person was armed with pistol and fourth was with Lathi. Accused Makhan at the gun-point snatched the keys of the cupboard and all of them took away licensed weapons SBBL gun and revolver so also cash of Rs,25,000. It is further complained that the complainant party after such incident left for Laki Shah Sadar where they met the police who called T.C. Soomar Brihmani from Sehwan who tracked the foot-prints which led to Otaq of Makhan Lund and his house near Laki.
3. The applicants filed their application before the trial Court but the same was rejected vide order dated 5-10-2000, hence this bail application.
4. I have heard the learned counsel for the applicants, learned Assistant Advocate-General for the State.
5. Learned counsel for the applicant argues that the name of the applicant Wazir does not find mention in the F.I.R. And his identification parade was not held. The case property was foisted upon him and recovery was doubtful. He further contended that though the name of applicant Ali Bux appears in the F.I.R. Yet no recovery was effected from him. Learned counsel further contended that F.I.R. Is delayed by 20 hours for which no explanation has been given. According to the learned defence counsel investigation prior to lodging of F.I.R. Was illegal and that the applicants were implicated falsely. In support of his above arguments the learned counsel relied upon various authorities to plead that the case of the applicant was of further inquiry.
6. Learned Assistant Advocate-General for the State contended that the statement of the P.Ws.
Under section 161, Cr.P.C. Were recorded promptly and that recovery was made from the applicant Wazir and that the name of Ali Bux appears in the F.I.R. He went on to argue that the preliminary inquiry was not barred.
7. Admittedly the name of the applicant Wazir does not transpire in the F.I.R. And no identification parade was held. Mashirnama of arrest shows that the police has arrested 10 persons on 25-2- 2000, out of which alleged recovery of stolen property was made from the two accused persons including applicant Wazir. Though the Mashirnama of recovery shows that the applicant/accused voluntarily led the police to the place of recovery yet no private Mashir was associated thus, the recovery made in presence of police officials was doubtful, more particularly the place of recovery being commonly accessible.
7-A. So far as the case of applicant Ali Bux is concerned there is no evidence against him except that his name appears in the F.I.R, neither specific role has been attributed to him nor any recovery has been made from him. The F.I.R. Is delayed having been lodged after preliminary investigation as such his false implication cannot be ruled out. In the circumstances I feel that case of both the applicants/accused calls for further inquiry.
8. For the above reasons I direct that the applicant Wazir and Ali Bux be released on bail on furnishing surety in the sum of Rs,1,00,000 (one lac) each and P.R. Bond in the like amount to the satisfaction of trial Court.
Cited by 2 cases
- ABDUL QADIR alias BABOO vs THE STATE 2009 P Cr. L J 79
- NAVEED vs THE STATE 2008 PLD Karachi 154