' The order in this Criminal Miscellaneous Application shall also dispose of Criminal Miscellaneous No, 6/84 as both the matters have arisen out of the same F. I. R. Bearing No, 699 dated 24-8-1983 of Police Station TakhtBhai. Mulki Zaman and Muhammad Ilyas, accused are challaned under section 9 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 in the report lodged by Janat Gul complainant, on 24-8-1983 in Police Station Takht-Bhai. The accused are charged for having committed theft in the house of the complainant on 23-8-1983 at 11.00 p. In. The accused- petitioners were declined bail by the Magistrate but their application for bail was accepted by the learned Additional Sessions Judge, Mardan, on 11-12-1983. Janat Gul, complainant, as applied for the cancellation of the to the accused.
2. In support of the applications it is contended that the accused are directly charged in the F. I. R.
And the offence under section 9 of the Offences Against Property (Enforcement of Hudood)
Ordinance, 1979 being non-bailable and punishnable with amputation of hand, the bail should not have been allowed to the accused. Further, contends that besides their confessional statements, the stolen property had also been recovered from the possession of the accused.
3. It appears that the report of the occurrence was not lodged with promptitude because the occurrence is alleged to have taken place at 11. p. m. On 23-8-1983 but the matter was reported on the following day a 2.30 p. In. In the police station which is at a distance of about 8 kilometers. It is not disputed that for the offence of theft liable to Hadd the evidence of two Muslim adult male witnesses is required which is not available in the case. Regarding the confessional statements of the accused it may mentioned that in their applications before the Additional Sessions Judge they had retracted from their confessions. In these circumstances, it is yet to see if the offence would be punishable under section 9 of the Ordinance. Section 13 of the Ordinance provides that whoever commits theft which is not liable to Hadd, or for which proof in either of the forms mentioned in section 7 is not available, or for which Hadd may not be imposed or enforced under this Ordinance, shall be liable to tazir. Section 14 of the Ordinance provides that whoever commits theft liable to tazir shall be awarded punishment provided for the offence of theft in the Pakistan Penal Code, 1860. In case the offence committed by the accused is punishable as tazir, then the punishment provided for the offence of theft in the Pakistan Penal Code would not fall within the prohibitory clause of section 497(1), Cr. P. C. 8 In the circumstances and ,without expressing any opinion on the merits of the case, no fault can be found with the discretion exercised by the learn Additional Sessions Judge in granting bail to the accused-respondents.
4. Both the applications are, therefore, dismissed.
Applkation dismissed.