GULAP KHAN vs THE STATE and another

Accused-petitioner Gulap Khan seeks his release on bail in case F.I.R. No,320 dated 14-8-2003 registered under sections 457/380, P.P.0 at Police Station, Lakki.

2. The allegations against the accused-petitioners are that he on the night between 16/17-7-2003 at midnight time alongwith his co-accused committed theft of golden ornaments and cash amount etc.

3. After his arrest, the accused-petitioner applied for bail before the Court of Judicial Magistrate-II, Lakki Merwat who vide his order dated 29-8-2003 rejected the same. His further application before learned Sessions Judge was also rejected vide order dated 10-9-2003. Hence, this petition.

4. The learned counsel for the petitioner contends that the F.I.R was lodged after 27 days of the occurrence; that initial report was lodged in the daily diary on 17-7-2003 whereby the complainant did not charge any body and suspected his relatives for commission of an offence; that complainant party has not disclosed the source that from where they gathered information that the accused-petitioners are involved in the crime and that the word satisfaction is not sufficient to connect the accused with an offence; that the recovery effected from the goldsmith comprised of one necklace, one ring and ear-lits whereas in the F.I.R, theft of necklace, 'Bindya' and nose rings was alleged which is clear cut contradiction. He placed reliance on 1996 SCM R 511.

5. The learned Deputy Advocate-General opposing the contentions of learned counsel for the petitioner, submitted that the recovery so effected from goldsmith was on the pagination of the accused and that the goldsmith was examined under sections 161 and 164, Cr.P.0 who confirmed that he had purchased the above articles from the accused-petitioner on payment of Rs,10.875; that the petitioner is charged under section 457, P.P.0 the punishment of which exceeds four years and comes within the prohibitory clause. Places reliance on 2002 SCM R 442 whereby the punishment prescribed for the offence was seven years but bail was cancelled.

6. 1 have heard the learned counsel for the parties and perused the record with their able assistance.

7. Perusal of the record shows that F.I.R and recovery memo clearly contradict each other and are inconsistent which required to be thrashed at the trial stage. It is, therefore, a case of further inquiry.

8. In view thereof, this application is accepted and it is directed that the petitioner be released on bail on furnishing bail bonds in a sum of Rs,1,00,000 (Rupees one lac) with two sureties each in the like 13 amount to the satisfaction of Illaqa/Deputy Judicial Magistrate who shall ensure that the sureties are local, reliable and men of means.