Khuda Bukhsh etc. vs State etc.

ORDER SHEET

IN THE LAHORE HIGH COURT

MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

Crl. Misc. No. 7681-B of 2018

Khuda Buksh. Vs. The State etc.

S.No. of order/ Date of order/ Order with signatures of Judge, and that of parties or counsel, proceeding proceeding. where necessary.

19.03.2019 Ch. Umar Hayyat, Advocate with the petitioner. Mr. Hassan Mahmood Khan Tareen, DPG with Mukhtar, ASI.

Mr. Hasnain Abbas, Advocate for the complainant.

By way of this single order, I intend to dispose of Crl. Misc. No.7681-B of 2018 filed by Khuda Buksh and Crl. Misc. No.1520-B of 2019 filed by Husnain Mahmood, arising out of the same FIR.

2.The petitioners in both the petitions mentioned above, are seeking their pre-arrest bail in case FIR No.427 of 2018, dated 16.10.2018 registered at Police Station Kot Mithan, District Rajanpur in respect of an offence under section 380,

PPC.

3.The allegation as against the petitioners, as culled from the evidentiary material produced before the Court, is that they committed theft in the house of complainant depriving her of three goats and one sheep.

4.Arguments heard. Record perused.

5.At the very out-set, it is discernable from the perusal of the FIR, that there is delay in lodging the same of about a month. The explanation as offered by the complainant for such delay is bereft and also unbelievable as to why, she, knowing that the

Crl. Misc. No.7681-B of 2018

petitioners were actual thieves, believed their word and did not report the matter to the police for such a long period. Despite there being delay, the evidentiary material is also deficient with respect to the proof against the petitioners. Though, it is recorded in the FIR that both the petitioners admitted their theft and also promised to return the animals stolen by them however, there is no date, time or place mentioned as to whether and when, such admission was made by the petitioners for it to be considered as evidence against them. It was further recorded in the FIR that the petitioners were tracked through the help of a “Foot Tracker” but despite this fact, no statement under section 161, Cr.P.C was recorded of the said “Foot Tracker” during the investigation of the case. Learned counsel for the petitioners has presented a copy of earlier application filed by the same complainant against some different accused dated 23.04.2018 wherein, the allegation was of similar nature that the accused persons had committed robbery and taken away animals belonging to the complainant. Learned counsel for the complainant has admitted that such application was moved however, has stated that those co-accused were let off after compromise between the parties and loss of the complainant was redressed. In view of these physiognomies of the case, I am of the view that the assertions of learned counsel for the petitioners that the petitioners were involved in this case due to malafide and malice, is not without basis and the same cannot be rejected outright. Learned counsel appearing on behalf of the complainant has argued that recovery is to be effected from the petitioners

Crl. Misc. No.7681-B of 2018

but it is admitted position of law that for the purpose of recovery, it is not necessary that the petitioners be sent behind the bars and the same purpose can be achieved by obtaining a search warrant by the Investigating Officer. Additionally, during the investigation of the case, no recovery was effected from the petitioners during whole of that period. The investigation of the case is complete and Investigating Officer has also verified the version of the complainant as well as petitioners hence, sending the petitioners behind the bars at this stage, would cause irreparable loss to their reputation.

6.For the reasons recorded above, both the above titled petitions are allowed and ad-interim pre-arrest bail already granted to the petitioner namely Khuda Buksh by this Court vide order dated 02.01.2019 and ad-interim pre-arrest bail granted to the petitioner namely Hasnain vide order of this Court dated 12.03.2019, are hereby confirmed subject to their furnishing of fresh bail bonds in the sum of Rs.500,000/- each with two sureties each in the like amount to the satisfaction of learned trial Court.

7.Needless to mention that any observations made in the above order are tentative in nature and shall not influence the trial Court, in any manner.

(SADIQ MAHMUD KHURRAM)

Judge Approved for reporting

JUDGE

T.M.Alvi/*