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Petitioner: MUHAMMAD AMIN VS Respondent: StateHonorable Justice Sardar Muhammad Shamim KhanMian Abbas, Sardar Zafar Iqbal Tareen and Muhammad Yousaf Khan
2011 M L D 983
2011 M L D 983
[Lahore]
Before Sardar Muhammad Shamim Khan, J
MUHAMMAD AMIN---Petitioner
Versus
THE STATE and another----Respondents
Criminal Miscellaneous Nos. 4101-B and 3189-B of 2010, decided on 23d November, 2010.
Criminal Procedure Code (V of 1898)---
----S. 497-Penal Code (XLV of 1860), Ss.395/412---Dacoity, dishonestly receiving property stolen in dacoity---Bail, grant of---F. I. R. was lodged after a delay of five days---Culprits were not identified by the prosecution witnesses at the time of occurrence---Complainant had not given the source of his knowledge about the accused and their mode of committing dacoity---Accused had been involved in the case on the basis of hearsay evidence---Complainant had submitted an affidavit before the Magistrate for not granting physical remand of one accused to police, as he had forgiven him---Doctor had also 'given an affidavit to the police about the presence of other accused in his hospital at the time of occurrence in connection with the operation of his wife regarding delivery of child---No prosecution witness had identified the recovered articles to be the same as having been forcibly taken away by the accused at the time of dacoity---Another case got registered by the complainant against the accused persons had been cancelled on having been found false---Guilt of accused was subject to further inquiry in circumstances and they were admitted to bail accordingly.
Mian Abbas, Sardar Zafar Iqbal Tareen and Muhammad Yousaf Khan for Petitioners.
Rao Zahid Latif for the Complainant.
Hassan Mahmood Khan Tareen, learned D.P.-G. for the State.
Muhammad Nazeer, A.S.-I. with record.
ORDER
SARDAR MUHAMMAD SHAMIM KHAN, J.---Muhammad Amin and Muhammad Munir, petitioner have sought their post-arrest bails through two separate bail petitions bearing Criminal Miscellaneous No.4101-B of 2010 and Criminal Miscellaneous No.3189-B of 2010, in a case registered against them vide F.I.R. No.266 of 2010 dated 14-7-2010 for the offences under sections 395 and 412 of P.P.C., registered at Police Station Basti Malook, District Multan. As both these petitions are outcome of one and same F.I.R., hence, both petitions are decided through this single order.
2. According to F.I.R. on 10-7-2010 at about 10-00 p.m. the complainant along with his family members was available in his house, when five persons, armed with fire arms, criminally trespassed into his house and committed dacoity of golden ornaments weighing 40-tolas, Saudi Rial 30,000, Cash Rs.16,50,000, his passport, his VISA, National Identity Card, Watches, Motorcycle and Mobile Phone etc.
3. Complainant lodged report of this occurrence on 14-7-2010 and stated that he himself kept on searching for the accused persons and now he had come to know that this occurrence was committed by Muhammad Amin and Muhammad Munir, petitioners and one Ghulam Hussain, who are his relatives. It has further been alleged in the F.I.R. that a quarrel had been taken place between him and Muhammad Munir, petitioner in Saudi Arabia and due to said quarrel, all these three accused persons had managed this dacoity in his house by Zahore Hussain son of Ashiq Hussain along with four unknown persons and at the time of dacoity Muhammad Munir, Muhammad Amin and Ghulam Hussain kept on standing outside.
4. Learned counsel for the petitioners submits. that the F.I.R. was lodged by the complainant after extraordinary delay of five days; that in spite of extra ordinary delay in lodging the F.I.R. the complainant did not provide any source that how he came to know regarding the involvement of petitioners in this case; that' there was no evidence available on the record against the petitioners that they were standing outside when the dacoity was being committed in the house of the complainant; that no identification parade was held in order to identify the petitioners in this regard; that police showed recovery of certain ornaments, amount of Rs.30,00,000 and watches from the possession of Muhammad Amin, petitioner at different dates and also recovery of Rs.8,70,000 was allegedly planted against Muhammad Munir, petitioner on 31-7-2010. It is contended on behalf of Muhammad Amin, petitioner that at the time of occurrence her wife was admitted in the hospital as a delivery case and Muhammad Amin, petitioner remained present whither in the hospital from 10-7-2010 to 11-7-2010 till 10-00 a.m. In this regard affidavit of Dr. Ejaz Ahmad, Poly Clinic and Maternity Home has been attached with the petition. Learned counsel for Muhammad Munir, petitioner submits that the petitioner was falsely involved in this case on account of enmity with the complainant party which has been admitted by the complainant in the F.I.R.
5. Learned D.P.-G. and learned counsel for the complainant have contended that the petitioners were implicated by the complainant after about 5-days of the occurrence and they were nominated by the complainant, when he came to know regarding the involvement of the petitioners in this case; that the petitioners were nominated in the F.I.R. and there is specific allegation against them that they had managed the commission of dacoity in the house of the complainant by one Zahore Hussain and four other unknown persons on the basis of enmity with the complainant; that recoveries were effected from both petitioners, so, there is 'sufficient evidence against the petitioners connecting them with the commission of offence alleged against them; that the offence falls within the purview of prohibitory clause of section 497 of Cr.P.C., so, they were not entitled to the grant of bail.
6. I have heard the learned counsel for the parties and perused the record.
7. This F.I.R. was lodged with the delay of five days. The accused persons, who committed the dacoity, were not identified by the P.Ws. at the time of commission of offence. According to the version of the complainant, given in the F.I.R., he kept on searching for the accused persons and now he came to know that his relatives Muhammad Munir and Muhammad Amin, petitioners and Ghulam Hussain had managed the dacoity in his house, through Zahore Hussain and four others and that petitioners and Ghulam Hussain were standing outside at the relevant time. Complainant did not give any source that how he came to know regarding the aforementioned facts. There is no evidence available on the record that at the time of commission of dacoity in his house, the petitioners 'along with Ghulam Hussain were standing outside, so, the petitioners have been involved in this case on the basis of here-say evidence. Police recovered Rs.8,70,000, one watch and two Golden Bangles frorn Muhammad Munir, petitioner. Perusal of record reveals that after this recovery from the possession' of Muhammad Munir, complainant submitted affidavit before learned Magistrate 1st Class that Muhammad Munir, should not be granted physical remand for further recovery and he had forgiven him and he has no objection, if he be sent to judicial remand. Dr. Ejaz Ahmad also submitted affidavit before the police on 31-7-2010 that Muhammad Amin son of Sahib Yar remained present in his hospital from 10-7-2010 to 11-7-2010 in connection with the, operation of his wife regarding delivery of a child. Police also effected recovery of different articles from Muhammad Amin, petitioner on different dates. Perusal of record reveals that no P.W. identified the recovered articles from the possession of the petitioners that these were the same articles which were in fact forcibly taken away by the accused persons at the time of dacoity. The enmity with Muhammad Munir, petitioner is also admitted in the F.I.R. After registration of this case complainant lodged another case bearing F.I.R. No.292 of 2010 for the offences under sections 452 and 506 of P.P.C. registered at Police Station Basti Malook, against the petitioners, which was cancelled and found to be false.
8. For what has been discussed above, the case of the petitioners comes within the ambit of further inquiry, so, both petitions are accepted and the petitioners are admitted to bail subject to their furnishing bail bonds in the sum of Rs.2,00,000 each with one surety each in the like amount to the satisfaction of the learned trial Court.
N.H.Q./M-76/L Bail allowed.