' ATTAULLAH KHAN, J.---Petitioner, namely, Dilawar has been arrested, by the local police in case F.I.R. No,209 dated 12-11-2010 registered at Police Station, Chaudhwan under sections 382/ 411/34. He applied for his release on bail to the learned Judicial Magistrate-II, D.I.Khan and Additional Sessions Judge-V, D.I.Khan but did not get the relief and his application was rejected on 13-1-2011 and 26-1- 2011 respectively. Hence he filed the instant petition for his release on bail before this Court.
2. The summarized facts of the case in which petitioner is charged, are that on 12-11-2010, the complainant. Shadu Khan reported to the police to the effect that on his way back to home on his Motorcycle bearing No,4855/DGP CD-70 at about 1700 hours, when he reached near the graveyard falling on his way, he was stopped by the accused/ petitioner armed with a pistol and other accused. Both of them restrained the complainant and put him under fear of death and snatched his motorcycle and cell phone, hence the ibid F.I.R. Was chalked out.
3. Learned counsel for the accused/petitioner argued that the F.I.R. Was lodged with the delay of one an half hours despite the fact that the police station was at a distance of 7/8 kilometers from the place of occurrence. He further argued that the accused/petitioners were arrested on the day of occurrence i.e, 12-11-2010 and after remaining for 12 days in police custody his confession was recorded on 22-11-2010. He further contended that the confession is legally defective as it was obtained after torture and custody of about 12 days. He also submitted that the case does not fall under section 382, P.P.C. But it covers by section 381-A, P.P.C.
4. On the other hand, learned counsel for complainant opposed the bail on the ground that the accused/petitioner is directly charged in the F.I.R. And accused/petitioner has confessed his guilt before competent Court, therefore, he is not entitled to the concession of bail.
5. Arguments advanced by learned counsel of the petitioners and State heard and file perused.
6. Perusal of record reveals that the period of custody of accused/ petitioner before the police is disputed. Though on the record the accused/petitioner was arrested on 20-11-2010 but in questionnaire form in answer to question No,5, the accused/petitioner has stated the period of custody as 10 days, so, it is, disputed that he remained for 12 days custody in police. The second fact noted in respect of confession, is answer to question No,6, wherein the petitioner has affirmed that he was tortured by police. Normally at this stage the confession and other evidence are not discussed in detail and only tentative assessment is made but this case is an exceptional because of peculiar nature of confession. As stated in answer to question No,5 in questionnaire form the accused/petitioner remained in police custody for 10 days. Similarly as per answer to question No,6 he was tortured. So prima facie the confession is not voluntarily. In a case where the accused/petitioner remained in policy custody for 13 days and his confession was recorded after the said period, on this ground the Court held the case is of further inquiry and bail was granted.
The case is reported in 2007 PCr.LJ 39. So in my opinion on the basis of defects in the confessional statement, the case of accused/petitioner has become of further inquiry. Moreover, it is still to be settled that whether the case would fall under section 382 or 381-A, P.P.C. The provision of section 381-A, P.P.C. Is reproduced below: "Theft of a car or other motor vehicles. Whoever commits theft of a car or any other motor vehicle, including motorcycle, scooter and tractor shall be punished with imprisonment of either description for a term which may extend to seven years and with fine not exceeding the value of the stolen car or motor vehicle.
' The above provision shows that keeping in view the circumstances the case of the petitioner would come under section 381-A, P.P.C. Keeping in view definition of theft from this ground also the accused/petitioner specifically bailed out. Reference is given to 2001 PCr.LJ 555. The record contains of Super digamma in which motorcycle and mobile was handed over by police to the complainant. On both these documents no date is available. Here doubt arises as to on which date these two articles were handed over to the complainant. It is disclosed from the record that the challan is complete and the accused/petitioner is no more required for investigation. He is also first offender and has no previous criminal history.
7. Keeping in view the defects in the confessional statement of accused/petitioner coupled with his doubtful arrest, application of section of law, delay in lodging of F.I.R. And completion of investigation, the case of accused / petitioner has become of further inquiry.
8. Resultantly, the instant bail petition is accepted and petitioner is allowed to be released on bail provided he furnishes bail bonds in the sum of Rs,1,00,000 (one lac) with two sureties each in the like amount to the satisfaction of Illaqa/Duty Magistrate, D.I. Khan. The sureties must be local, reliable and men of means.