AYAZ AHMED vs THE STATE

ORDER

1. ' By this common order, four Criminal Bail Applications Nos.414 to 417 of 2001 filed by applicant Ayaz Ahmed are disposed of as identical questions of facts and law are involved.

2. ' In Criminal Bail Application No,414 of 2001, the allegations, in brief, as per F.I.R. No,3 of 2001 lodged by Hotu Mal with Police Station Thano Boola Khan on 1-3-2001 at 16-30 hours under sections 380 and 457, P.P.C. Read with section 14, Offence Against Property (Enforcement of Hudood) Ordinance, are that on 10-2-2001, during morning hours the informant and his family members left their house to attend marriage ceremony of his nephew, returned on the next day i,e, 11-2-2001 in the morning hours and found that the articles including V.C.P., cash of Rs,41,000, Gold and Silver ornaments, Silver 1 Kg. And clothes valuing Rs,1,32,800 were stolen away by some unknown persons during the night falling between 10/11-2-2001.

3. ' In Criminal Bail Application No,415 of 2001, the allegations, in brief, as per F.I.R. No,4 of 2001 lodged by Nand Lal with Police Station Thano Boola Khan on 10-3-2001 at 14-00 hours under sections 380 and 457, P.P.C. Read with section 14, Offences Against. Property (Enforcement of Hudood)

4. Ordinance, are that the informant, his family members were sleeping in the courtyard of his house and when he awakened in the morning he found that some unknown thieves had stolen away articles including a bag, Bonds, cash, two tape-recorders, a citizen watch and a gold ring valuing Rs,38,200.

5. ' In Criminal Bail Application No,416 of 2001, the allegations, in brief, as per F.I.R. No,4 of 2001 lodged by Hotan Mal with Police Station Thano Boola Khan on 15-3-2001 at 18-00 hours under sections 380 and 457, P.P.C. Read with section 14, Offences Against Property (Enforcement of Hudood) Ordinance, are that informant, his son and other family members left his house for Daur in connection with his business affairs and on 14-3-2001 he received a telephonic message from his brother Nand Lal that some unknown thieves had committed theft in his house. On receipt of such information, he alongwith his son came back to his house and found that articles viz. a Carpet, Silver Utensil, Juicers, Blender sets with other cartularies, sheets of clothes, plastic chairs and Table and cash valuing Rs,1,26,590 were stolen away during the night falling between 13/14-3-2001.

6. ' In Criminal Bail Application No,417 of 2001, the allegations, in brief, as per F.I.R. No,6 of 2001 lodged by Gangu Mal with Police Station Thano Boola Khan on 8-4-2001 at 18-00 hours under sections 380 and 457, P.P.C. Read with section 14, Offences Against Property (Enforcement of Hudood) Ordinance, are that on 7-4-2001 informant, his family members, after taking meals were sleeping in the courtyard of his house and when they woke up at about 7-00 a.m. They found that some unknown thieves had, by committing theft, taken away gold ornaments, a raw gold of two Tolas, Silver weighing three Pao and two Tolas, Camera, ladies watches, Cardless telephone, a sewing machine and machines for message valuing Rs,1,66,600.

7. ' It is stated that on 7-5-2001 the applicant was arrested. Except in Crime No,6 of 2001, in all other three cases some stolen property was recovered from him on 11-5-2001 whereas in Crime No,6 of 2001 some stolen articles were recovered from him on 9-5-2001. Subsequently, it is stated, that the applicant was produced on 22-5-2001 before the Mukhtiarkar and First Class Magistrate where his statement under section 164, Cr.P.C. Was recorded, in which, he is said to have confessed the commission of the offence in company of co-accused Ramesh in all the aforementioned cases. It is informed that after completion of investigation, the applicant and the co-accused have been challaned before the Magistrate of jurisdiction.

8. The applicant moved separate bail applications before Civil Judge and F.C.M. Kotri which were dismissed on 29-6-2001 by separate orders. The applicant, thereafter, filed other four separate applications before the Additional Sessions Judge, Kotri which have also been dismissed by separate orders, dated 28-7-2001. Contentions of learned counsel for the applicant are that in all the cases, F.I.Rs, have been lodged with sufficient delay. In Crime No,3 of 2001 the delay is about 18 days, in Crime No,4 of 2001, the delay is about 3 days, in Crime No,5 of 2001, the delay is about 42 hours, in Crime No,6 of 2001, the delay is about 18 hours. He submits that this delay is unexplained and adversely affects the prosecution case. His other contention is that no other evidence is available against the applicant excepting his alleged confessional statement; also the alleged recovery of some of the articles in each case. He has expressed that the applicant was arrested Oil 7-5-2001 whereas his confessional statement was recorded on 22-5-2001 i,e, after a delay of 15 days which affects the prosecution case adversely inasmuch as that the element of voluntaries is exceedingly affected diminishing value of the confessional statement. Besides learned counsel has challenged the admissibility of the confessional statement on the ground that it has not been recorded before the trial Court, therefore, it is inadmissible. He submits that, in the circumstances, the cases against the applicant can be construed to fall only under section 411, P.P.C. Which is punishable for three years not attracting the prohibitory clause'of section 497, Cr.P.C., therefore, the applicant is entitled to bail. He has placed reliance on the case of Ghulam Habib v. The State PLD 1994 Pesh. 84, the case of Tariq Bashir v. The State PLD 1995 SC 34, the case of Muhammad Waseem and 7 others v. The State 1998 PCr.LJ 435 and the case of Sarwar v. The State 2000 PCr.LJ 82.

9. ' Learned State Counsel have vehemently opposed the grant of bail. Their contention is that, beside the confessional statement of the applicant, there is recovery of some of the stolen articles from the applicant in each crime which prima facie suggests that the applicant has a tendency to repeat like offences. He expressed that in such cases which are punishable for less than 10 years, the bail will be declined in view of the dictum laid down in case of Tariq Bashir (supra).

10. ' I have given my anxious consideration to the arguments of both the learned counsel and with their assistance examined the material available on record. I have also gone through the case-law referred to by both the learned counsel. It is a fact that some articles in all the four criminal cases are alleged to have been recovered from the applicant. Contentions of learned counsel for the applicant that since the case against the applicant would fall only under section 411, P.P.C. With punishment which is punishable for three years and that the same does not fall within the prohibitory clause of section 497, Cr.P.C., the applicant is entitled to the grant of bail keeping in view the dictum laid down in case of Tariq Bashir (supra) and the case of Sarwar (supra), is not tenable.

11. It may be noted that in the cited case of Sarwar (supra), bail has been granted to the applicant therein relying on the case of Tariq Bashir (supra). In the latter case, it has been held that in any offence punishable with imprisonment for less than 10 years, grant of bail is rule and refusal is an exception; and the bail will be declined only in extraordinary and exceptional cases, for example, amongst others, where there is a danger of an offence being repeated if the accused is released on bail. It will be advantageous to reproduce the relevant passage from the case of Tariq Bashir (supra) as follows:- "Section 497, Cr.P.C. Divided non-bailable offences into two categories i,e, (i) offences punishable with death, imprisonment of life or imprisonment for ten years and (ii) offences punishable with imprisonment for less than ten years. The principle to be deduced from this provision of law is that in non-bailable offences falling in the second category (punishable with imprisonment for less than ten years) the grant of bail is a rule and refusal an exception. So, the bail will be declined only in extraordinary and exceptional cases, for example:--

(a) Where'there is likelihood of abscondence of the accused;

(b) where there is apprehension of the accused tampering with the prosecution evidence;

(c) where there is danger of the offence being repeated if the accused is released on bail; and

(d) where the accused is a previous convict."

12. ' Case against the applicant is that some stolen articles have been recovered from his possession in not less than four cases which sufficiently establish the tendency of the mind of applicant and his attitudes to repeat the commission of the like offences. In my humble view his case shall be attracted by exception mentioned in clause (c) above. The other case-law referred to by learned counsel is not relevant to this point and relate to different circumstances. In the circumstances, I do not find any merit in these applications which are, accordingly dismissed. The applicant may, however, repeat his bail application after the evidence of the Mashirs of the recovery has been recorded. The trial Court is also required to examine the Mashirs as expeditiously as is possible and more preferably within 60 days from receipt of this order.