1. ' GHULAM QADIR LEGHARI, J.---Applicant Zahid Hussain Chandio seeks post arrest bail in Crime No,44/2014, registered with Police Station Garhi Yasin, for offences punishable under Sections 17(3) of the Offence Against Property (Enforcement of Hudood) Ordinance, 1979 and 506(2), P.P.C.
2. ' The case of prosecution is that, on 01.7.2014, at 1400 hours complainant Shahzado Mirani lodged FIR, alleging the;ein that he owns a Suzuki having registration No,KS-5927, white colour, model 2012, Chasis No, PK-320168 and Engine No, SPT215507 which he plies as Taxi on hire, and also driving the same himself. It is alleged that on 06.4.2014 it was about 5.00 p.m. He was available at Garhi Yasin Taxi stop, then accused Zahid Hussain, Mumtaz, Badaruddin and one unknown accused with open faces, who were clearly seen and will be identified if seen again came there and disclosed that they have to go Karampur. The complainant settled rent and accused Zahid gave a copy of CNIC to Starter Imtiaz Ahmed, then complainant alongwith his son namely Parvez Ahmed proceeded towards Karampur with accused persons, when they reached at Koreja curve then accused Mumtaz took T.T pistol and pointed upon complainant and directed him to stop the vehicle, the vehicle was stopped and accused persons got down the complainant from driver seat and inflicted kicks and fists blows to him. Accused Badaruddin pointed out pistol upon his son Parvez Ahmed, thereafter accused Fareed robbed mobile phones from them, then accused Mumtaz sat on driver seat and then by extending threats that if they will lodge FIR be murdered and fled from the spot. The documents of said Suzuki were also lying in vehicle. The complainant then approached the concerned police station to lodge FIR, but concerned SHO has refused to register his FIR. The complainant also approached the accused persons at given address where they met him and demanded amount of Rs,200,000/- as ransom for return of Suzuki. Thereafter, complainant again approached the concerned SHO, but who did not register his FIR then complainant after seeking directions from Sessions Court/ Ex-Officio Justice of Peace went to police station and lodged FIR.
3. ' Learned counsel for the applicant mainly contended that, there is delay of 25 days in lodging FIR, for which no plausible explanation has been furnished. Learned counsel further submits that the order was passed by learned Ex-Officio Justice of Peace on 26.6.2015, yet the complainant appeared at P.S. For lodging FIR on 01.7.2015, without any explanation. Per learned counsel nothing incriminating has been recovered from applicant to connect him with commission of alleged offence. Learned counsel further contended that section 17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979 has wrongly been applied and its ingredients do not stand attracted to the present case. Per learned counsel ingredients of Harabah are also missing in the case, as according to Section 16 read with Section 7 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, the proof of theft liable to 'hadd' shall be in one of the 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 requirements of 'tazkiyah-al-Shuhood' that they are truthful persons and abstain from major sins, give evidence as eyewitnesses of the occurrence.
4. ' Learned counsel further submitted that, in view of aforementioned provisions of law the offence would be under Section 392, P.P.C. Which is punishable with rigorous imprisonment for a term not less than three years and not more than ten years and fine and it is well settled law that at the time of deciding bail application lesser punishment of the offence is to be seen. Learned Counsel in support of his contentions relied upon case of Irshad v. The State reported in 2004 PCr.LJ 1246, case of Rahat Ali v. The State reported in 2010 SCM R 584, case of Syed Ahmedullah Shah v. The State reported in PLD 1996 SC 241(c) and case of Ahmed Nawaz Solangi v. The State reported in 2014 YLR 1723.
5. ' Learned D.D.P.P opposed the grant of bail on the ground that the applicant has been nominated in the FIR with specific role and delay in lodging the FIR has been fully explained by the complainant and that the applicant has criminal history in his credit.
6. ' I have given due consideration to the submissions of the learned counsel for the applicant and learned D.P.G. And also perused police papers.
7. ' FIR shows that incident had taken place on 06.6.2014, while FIR was registered on 01.7.2014. It further shows that order passed by learned Sessions Judge/Justice of Peace in Cr. Misc. Appln.
8. No,320/2014, was received at police station on 26.6.2014, while complainant has lodged FIR on 01.7,2014 at 1400 hours, with the delay oF four days, which has not been explained by the complainant.
9. ' While in this case according to FIR the applicant/accused along with other co-accused had hired the taxi of the complainant for going to Karampur and NIC of Zahid Hussain was handed over to Starter Imtiaz, but at the time of recording statement of Starter Imtiaz, he has not provided the copy of NIC of accused Zahid Hussain before the I.O. Applicant was arrested; neither robbed mobile phones, nor robbed taxi, nor weapons were recovered from his possession, while as per contents of FIR accused Zahid Hussain robbed mobile phone from complainant and his son Parvez. In the instant case, complainant and P.W Parvez both are victim of the robbery while there are no eyewitnesses of the occurrence, having requirement of 'Tazkiyah-al-Shuhood that they are truthful persons and abstain from major sins, hence section 17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, is not applicable in this case therefore, at the most offence falls under Section 392, P.P.C. Which provides lesser punishment of Luree years and maximum, punishment for ten year and shall also be liable to fine. If the robbery be committed on the highway the imprisonment may extend to fourteen years.
10. ' In case of Ahmed Nawaz Solangi v. The State reported in 2014 YLR 1723 (Sindh) It is held that offence providing alternative punishments. At bail stage, the lesser of the two (alternative) punishments was to be taken into consideration in applying the prohibitory clause under Section 497(1), Cr.P.C. In view of this dictum laid down in this authority lesser punishment of section 392, P.P.C. Is three years, hence this offence does not fall within the prohibitory clause of section 497, Cr.P.C.
11. ' Moreover, in this case the FIR was lodged on 01.7.2014, while 1.0. Has recorded statements of P.Ws Parvez and Imtiaz Ali on 11.8.2015, after more than 40 days of lodging the FIR, and no explanation has been furnished by the 1.0. For delay in recording the statements of the P.Ws.
12. ' Reliance can be made on the case of Irshad v. The State reported in 2004 PCr.LJ 1246, wherein it was held that delay in recording 161 Cr.P.C. Statements of eyewitnesses was material significance for the purpose of bail. Accused was granted bail.
13. ' In this regard reference can also be made to case of Rahat All v. The State reported in 2010 SCM R
584. In this authority it is mentioned that delay in recording the statement of witnesses by police without furnishing any plausible explanation is fatal to the prosecution case and the statements of such witness is not to be relied upon.
14. ' Reference is also made to case of Syed Ahmedullah Shah v. The State reported in PLD 1996 SC 241 (c). Wherein it is held that whenever reasonable doubt arises with regard to participation of accused persons in crime or about the truth.Or probability of charge, the accused should not be deprived of the bail. It is better to keep him on bail, than in jail during the trial.
15. ' Keeping in view the material discussed above, and the law laid down in the aforesaid case law, I am of the considered view that the applicant has been able to make out a case for grant of bail in his favour. Accordingly, instant bail application stands allowed and applicant is directed to be released on bail on his furnishing solvent surety in the sum of Rs,100,000/- (One hundred thousand rupees) and P.R. Bond in the like amount to the satisfaction of trial Court.
16. ' Needless to mention here that the observations made hereinabove are tentative in nature and would not influence case of either party at trial.