Khan Zeb vs State.

2010 Y L R 1612

[Peshawar]

Before Mazhar Alam Khan Miankhel, J

KHAN ZEB---Petitioner

Versus

THE STATE and another---Respondents

Cr. M. No.1639 of 2009, decided on 30th October, 2009.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 457/380/411---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.14---Theft, lurking house-trespass and dishonestly receiving stolen property---Bail, grant of---Certain alleged stolen property, no doubt had been recovered from accused, but nothing was on record to reflect that those were the articles belonging to the complainant---In absence of such evidence, alleged recovery had become doubtful on the ground that such articles were commonly available in every house and easily available in the market---While considering the question of rule of consistency, High Court was of the opinion that same set of evidence was against all accused persons---Other two co-accused having been released on bail by High Court, accused was also entitled to be released on bail---Accused was released on bail, in circumstances.

Arbab Zafar Ali Khan for Petitioner.

Ikramullah Khan, A.A.-G. for Respondents.

Syed Sultan Ahmad Shah for the Complainant.

Date of hearing: 30th October, 2009.

JUDGMENT

MAZHAR ALAM KHAN MIANKHEL, J.---Khan Zeb accused petitioner along with his five other co-accused (1) Gul Zaman Shah, (2) Shakirullah, (3) Zamir Gul, (4) Bakht Taj, and (5) Miraj were booked under sections 457/ 380/411, P.P.C. read with section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 vide F.I.R. No.454 dated 16-7- 2009, Police Station Chamkani, Peshawar.

2.The complainant reported the matter to the police that when he came to his house after patrolling his duty as a night watchman, he was then informed by the house inmates that some unknown persons have entered their house in the midnight and have taken away four and a half Tolas gold ornaments, Rs.7500, one pedestal fan, one CD, one deck, one Sony TV along with clothes. The complainant after being satisfied named the present accused petitioner along with his five other co-accused (name of whom appeared in the F.I.R.).

3.Learned counsel appearing on behalf of the petitioner contended that it was an unseen occurrence. No proper identification of the recovered goods has been made because no brand of the alleged recovered TV was mentioned in the recovery memo. He was further of the view that there was nothing on the record which could suggest the source/evidence of the complainant's information and there was considerable delay in lodging the F.I.R. Learned counsel for the petitioner was further of the view that Gul Zaman Shah and Shakirullah co-accused have since been released on bail by this Court on 2-10-2009, so on the basis of rule of consistency, the accused petitioner is also entitled to the concession of bail.

4.On the other hand, Mr. Ikramullah Khan, Additional Advocate-General assisted by Syed Sultan Ahmad Shah, counsel for the complainant, have vehemently opposed the bail application of the accused petitioner and submitted that the recovery has also been made from the possession of the accused who were directly charged in the F.I.R. whereas delay in such-like matters is of no importance. However, in the present case, the delay has sufficiently been explained by the complainant.

5.The perusal of the record would reveal that no doubt certain alleged stolen articles have been recovered from the accused but there is nothing on the record to reflect that these were the articles belonging to the complainant. So, in absence of such evidence, the alleged recovery becomes doubtful on the ground that such articles are commonly available in every house and easily available in the market. While considering the question of rule of consistency, this Court is of the opinion that there is same set of evidence against all the accused, the other two co-accused have been released on bail by this Court, then in the circumstances, the accused petitioner is also entitled to be released on bail.

6.For the reasons recorded above, this bail petition is allowed and the petitioner shall be released on bail if he furnishes bail bond in the sum of Rs.100,000 (Rupees one lac) with two sureties, each in the like amount, to the satisfaction of Illaqa Judicial Magistrate/ Magistrate on Duty.

7.However, my this order may not prejudice mind of the trial Court during the trial.

H.B.T./77/P Bail granted.