By way of this single order , I intend to dispose of Crl. Misc. No, 7681-B of 2018 filed by Khuda Buksh and Crl. 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, PPC.
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.0 was recorded of the said "Foot Tracke r" 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 compl ainant. 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 2.1.2019 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,500,00e'- 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 .