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Petitioner: HUSNAIN MEHMOOD VS Respondent: StateHonorable Justice Sadiq Mahmud KhurramCh. Umar Hayyat
2020 P Cr. L J Note 21 [Lahore (Multan Bench)] Before Sadiq Mahmud Khurram, J HUSNAIN MEHMOOD and another---Petitioners Versus The STATE and another---Respondents Criminal Miscellaneous No. 7681-B of 2018, decided on 19th March, 2019. (a) Criminal Procedure Code (V of 1898)--- ----Ss. 498 & 161---Penal Code (XLV of 1860), S. 380---Theft in dwelling house---Pre-arrest bail, grant of---Non-recording of statement of witness---Effect---Mala fide of complainant---Scope---Accused persons were alleged to have stolen three goats and one sheep from the dwelling house of complainant---First Information Report was lodged with a delay of one month and the explanation offered for such delay was unbelievable as to why, complainant, knowing that the petitioners were actual thieves, believed their word and did not report the matter to the police for such a long period---According to FIR, both the petitioners had admitted their theft and also promised to return the animals stolen by them, however, there was no date, time or place mentioned as to whether and when, such admission was made by the petitioners---Petitioners, according to FIR, were tracked through the help of a "Foot Tracker" but despite said fact, no statement under S. 161, Cr.P.C. was recorded of the said "Foot Tracker" during the investigation---Petitioners presented a copy of earlier application filed by complainant against some different accused with the allegation was of similar nature---Complainant admitted that such application was moved, however, stated that those co-accused were let off after compromise---Assertions of petitioners that they were involved in the case due to mala fide and malice, was not without basis and the same could not be rejected outright---No recovery was effected from the petitioners during investigation---Investigation of the case was complete and the Investigating officer had also verified the version of the complainant as well as of petitioners---Petitions for grant of pre-arrest bail were allowed, in circumstances. (b) Criminal Procedure Code (V of 1898)--- ----S. 498---Pre-arrest bail---Arrest for purpose of recovery---Scope---Arrest of accused for the purpose of recovery is not necessary---Such purpose can be achieved by obtaining a search warrant by the Investigating Officer. Ch. Umar Hayyat for Petitioners. Hassan Mahmood Khan Tareen, DPG with Mukhtar, ASI for the State. Hasnain Abbas for the Complainant. ORDER SADIQ MAHMUD KHURRAM, J.---By way of this single order, I intend to dispose of Criminal Misc. No.7681-B of 2018 filed by Khuda Buksh and Criminal 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, P.P.C. 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 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 mala fide 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 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. SA/K-13/L Bail granted.