1. ' Dr. RANA MUHAMMAD SHAMIM, J.--- The applicant has assailed the impugned bail order dated 19- 6-2007 passed by the learned Additional Sessions Judge (H), Sukkur, in Crime No,49 of 2004 of Police Station, Dubar, .Under sections 392, 215/34, P.P.C. Read with section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance, 1979 whereby the bail to the applicant was refused.
2. ' Brief facts of the prosecution case are that applicant being armed with TT pistol along with the two co-accused armed with gun and TT pistol robbed Rs,6,000 and motor cycle from the complainant on the gun point.
3. ' Learned counsel for the applicant contended that there is delay of two months in lodging of the F.I.R. And no explanation has been offered for such delay; that no date and time of incident is mentioned in the F.I.R. Which creates serious doubt in the prosecution case; no specific role has been attributed to the applicant; the Mashirnama of place of incident is prepared after the delay of two months and 8 days from the registration of F.I.R. That the statement of prosecution witnesses recorded under section 161, Cr.P.C. After the delay of two months 8 days from the incident and 8 days from the registration of F.I.R.; that the provision of S.17(3), Offences Against Property (Enforcement of Hudood) Ordinance, 1979 is not applicable as according to F.I.R. Only one eye- witness was with the complainant and no other person has witnessed, the incident consequently Hadd cannot be imposed as provided under section 7 of the Ordinance, nothing incriminating material was recovered to connect the accused with the commission of alleged offence; that the dispute; if any between the complainant and the accused, of a civil nature; that the applicant is in custody since the registration of F.I.R. With trial which amounts to punishment before the judgment; bail to the co-accused Moula. Bux has been granted by the learned Sessions Judge, Sukkur vide order dated 28-2-2006. In support of his contentions, he relied upon a case of Ali Gul v. The State 2003 SCM R 201, case of Suba Khan v. Muhammad Ajmal and 2 others 2006 SCM R 66, case of Manzoor Ali alias Mumtaz v. The State 2001 PCr.LJ 344, case of Dildar alias Diloo Leghari v. The State 2003 PCr.LJ 552 and case of Shah Nawaz and 2 others v. The State 2004 PCr.LJ 379.
4. ' The learned Assistant Advocate-General has not controverted the submission of the learned counsel for the applicant and submits that it appears that the dispute between the complainant and the applicant is of civil nature and as such in the light of case-law mentioned above he has not opposed the grant of bail to the applicant.
5. I have heard learned counsel for the parties, gone through the case file case-law and it appears from the record available in the case file that the dispute, if any, between the complainant and the applicant is of civil nature. Further the delay in lodging the F.I.R. Has not been explained; that the date and time of occurrence has not been specifically mentioned. No explanation has been offered for recording the statement of P:Ws. Under section 161, Cr.P.C. After a considerable delay, no active role has been attributed to the applicant. Section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 is not applicable as provisions of section 7 do not attract.
6. Section 7 of the Ordinance is reproduced as follows:-- "7. Proof of theft liable to Hadd.--- The proof of theft liable to Hadd shall be in one of following forms, namely:--
(a) The accused pleads guilty of the commission of theft liable to `Hadd'; and
(b) at least two Muslim adult male witnesses, other than the victim of the theft, about whom the Court is satisfied, having regard to the requirement of `Tazkiya-al-Shahood' that they are truthful persons and abstain from major sins (Kabir), give evidence as eye-witnesses of the occurrence: ' Provided that, if the accused is a non-Muslim the eye-witnesses may be non Muslims: ' Provided further that the statement of the victim of the theft or the person authorized by him shall be recorded before the statements of the eye-witnesses are recorded.
7. ' In a case of Ali Gul v. The State (supra), the apex Court has held that when F.I.R. Was lodged with the delay of 24 hours without offering convincing explanation and the bail was allowed to the applicant by converting petition into appeal. In a case of Suba Khan v. Muhammad Ajmal and 2 others (supra), the apex Court has not cancelled by the High Court amongst other grounds on the ground of belated recording of P.Ws. Statement under section 161, Cr.P.C. And on the tentative assessm ent of the material available in case file as deeper appraisal and detailed discussion of evidence at bail stage was not appreciated as at bail stage it may prejudice the merits of the case of either party at the trial. In a case of Manzoor Ali alias Mumtaz v. The State (supra), this Court granted bail to the applicant where the name of the accused was mentioned in F.I.R. But the same had been lodged after inordinate delay of 34 hours which looses its sanctity and the accused was admitted to bail. In a case of Dildar alias Diloo Leghari v. The State (supra), this Court granted bail to the applicant as the F.I.R. Had been lodged after delay of two months and consequently the case of the accused was a case requiring further enquiry. In a case of Shah Nawaz and 2 others v. The State (supra), this Court granted bail to the accused on the ground of unexplained delay of one month in inspection of the site coupled with delay in examining two important witnesses creating doubt in prosecution case.
8. In the light the afore-mentioned judgments of the Honourable apex Court and this Court, the applicant's case has become a case of further enquiry entitling him for the grant of bail.
9. Accordingly, the bail was granted to the applicant by short order dated 21-2-2008 subject to furnishing solvent surety in the sum of Rs,One lac and P.R. Bond in the like to the satisfaction of the Trial Court. These are the reasons for the said short order.