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Petitioner: MUHAMMAD ASHRAF VS Respondent: StateHonorable Justice Khurshid Anwar BhinderMuhammad Farooq
2009 P Cr
2009 P Cr. L J 157
[Lahore]
Before Khurshid Anwar Bhinder, J
MUHAMMAD ASHRAF----Petitioner
Versus
THE STATE----Respondent
Criminal Miscellaneous No.6451/B of 2008, decided on 12th September, 2008.
Criminal Procedure Code (V of 1898)---
----S. 497(2)---Penal Code (XLV of 1860), Ss.380 & 457/34---Bail, grant of---Further inquiry---Accused though was nominated in the F.I.R., but the court had to make tentative assessment on the basis of available record---Two alleged eye-witnesses mentioned in the F.I.R., did not make hue and cry during the course of commission of offence at mid night, when they could have very easily either tried to apprehend accused persons or could have at least raised hue and cry, but they had not done so---Both said eye-witnesses were not seemed to be present at the time of occurrence---Story narrated in the F.I.R., in circumstances, seemed fabricated and concocted---Value of stolen articles, which were general merchandize products and household articles as mentioned in F.I.R. was Rs.1,50,000, but recovery effected from accused of the stolen articles, was worth Rs.18,000---Rest of the stolen articles could have also very easily recovered from the house of accused which also made the case of prosecution doubtful---F.I.R. showed that accused and his accomplice, were traced on the basis of footmarks, but no expert of footmarks was ever produced as a witness---When two eye witnesses of the occurrence had identified accused persons while committing the offence, then practically there was no need to engage the services of tracker---Entire story narrated in the F.I.R. was established to be concocted and unbelievable---Case of, accused being that of further inquiry into his guilt, he was admitted to bail, in circumstances.
Muhammad Farooq for Petitioner.
Shafqat Ullah Butt, D.P.-G. with Hadayat, S.-I. for the State.
Ch. Abdul Hameed for the Complainant.
ORDER
KHURSHID ANWAR BHINDER, J.--- The petitioner seeks post-arrest bail in case F.I.R. No.136 of 2008, dated 8-4-2008, registered under sections 457, 380, 411, P.P.C. at Police Station Saddar Bhakkar.
2. Precise allegations against the petitioner are that he along with his accomplices had broke into the shop of the complainant and had stolen general merchandise articles worth Rs.1,50,000 at mid night.
3. Learned counsel for the petitioner submits that the petitioner has been falsely implicated in this case and in fact no such occurrence has ever taken place and he has been involved in this case on the basis of footmarks. He further submits that search of the petitioner was since made on the basis of footmarks, therefore, this exercise could have been done by an expert, whereas no expert has been produced as a witness in this case, therefore, recovery of the stolen articles from the petitioner is highly doubtful. He further submits that the petitioner is behind the bars for the last four months.
4. Learned counsel for the complainant while opposing bail application of the petitioner submits that recovery of stolen articles have been effected from the petitioner's house, therefore, the petitioner is fully liable to the commission of the offence, which disentitles him to be released on bail.
5. Learned D.P.-G. also opposes bail application of the petitioner and submits that the petitioner is nominated in the F.I.R. with specific role. He further submits that the petitioner is liable to be tried under section 457, P.P.C. which is a non-bailable offence and falls in the prohibitory clause of section 497, Cr.P.C. He lastly submits that the petitioner has been held guilty in police investigation.
6. I have heard the learned counsel for the petitioner, learned counsel for the complainant as well as learned D.P.-G. and have also perused the record. There is no denying the fact that the petitioner is nominated in the F.I.R. but at the same time this Court has to make tentative assessment on the basis of available record and as per narration of F.I.R. it is clearly established that there are two eye-witnesses of the occurrence namely Abdul Hakeem and Muhammad Hussain Shah. It is absolutely surprisingly that these two eye-witnesses have been mentioned in the F.I.R. of the alleged occurrence but they did not make hue and cry during the course of the commission of offence at mid night when they could have very easily either tried to apprehend the accused persons or could have at least raised hue and cry but they had not done so, therefore, it seems that both eye-witnesses mentioned in the F.I.R., were not present at the time of occurrence, therefore, story narrated in the F.I.R. seems fabricated and concocted.
7. As per F.I.R. all the stolen articles are general merchandise products and household articles. The value of the stolen' articles as mentioned in the F.I.R. is Rs.1,50,000, but recovery effected from the petitioner of the stolen articles is worth Rs.18,000. If it is so then rest of the stolen articles could have also very easily recovered from the house of the petitioner. This also makes the case of the prosecution doubtful.
8. As per the narration of F.I.R., petitioner and his accomplices were traced on the basis of footmarks and no expert of footmarks was ever produced as a witness. It is pertinent to mention here that when two eye-witnesses of the occurrence had identified the accused persons while committing the offence then practically there was no need to undertake an exercise to engage the services of tracker. Normally services of the tracker are hired in case of non-availability of any witness but in the instant case two eye-witnesses had identified the accused persons right away. Hiring the services of tracker becomes meaningless when eye-witnesses fully identified the accused persons. It is, therefore, established that the entire story narrated in the F.I.R. is concocted and unbelievable.
9. Under the circumstances, petitioner's case is that of further inquiry into his guilt. I, therefore, admit the petitioner to post-arrest bail subject to his furnishing bail bonds in the sum of Rs.50,000 with two sureties in the like amount each to the satisfaction of the trial Court.
H.B.T./M-354/L Bail granted.