' The brief facts of the bail application are that F.I.R. No,192/88, dated 19-9-1988 was registered at P.S. Cantt. Bahawalpur by Arif Iqbal, complainant under section 457/380, P.P.C.
2. Learned counsel for the petitioner contends that:
(i) F.I.R. Was lodged after a delay of 20 days.
(ii) That there are no eye-witnesses of the occurrence.
(iii) That no case is made out against the petitioner under the provisions of section 457/380, P.P.C.
(iv) That there is no evidence of petitioner having broken into the house or committed trespass or stolen the alleged goods.
(v) That though it has been alleged that there were footprints at the place of occurrence it has not been alleged any where that one of those was of the petitioner, nor any professional Foot Tracker's evidence had been brought in to establish the same.
(vi) That the recovery effected from the accused is only of the value of Rs,10,000 and thus the case is covered by section 411, P.P.C. And does not fall under section 457/380, P.P.C. And therefore, is not hit by the prohibitory clause. Therefore, the petitioner is entitled to bail.
(vii) That the petitioner is 50 years old and has no previous conviction or criminal record.
3. Learned counsel for the petitioner referred to 1978 P Cr. LJ 284. The authority cited by the learned counsel pertains to an offence under section 411, P.P.C. And not under section 457/380, P.P.C. He also referred to 1982 P Cr. LI 792 which deals with bail under section 380, P.P.C. Only in which the punishment is only 7 years whereas in the instant case the accused is also charged with section 457, P.P.C. For which punishment is 14 yeaRs, The next authority 1986 P Cr.LJ 2854 cited by the learned counsel for the petitioner deals with an offence under section 9 of the Hudood Ordinance, and not under section 457/380, P.P.C.
4. The next contention of the learned counsel for the petitioner is that the petitioner is in jail for the last two months and he is no more required by the police. He once again contended that no offence is made out under sections 457 and 380 as there is no evidence to fulfil the ingredients required under the law to make out an offence under these sections.
5. While opposing the bail the learned counsel for the State contends that the petitioner is named in the F.I.R. That the theft is of value of more than rupees one lakh. That the authorities cited by the learned counsel for the petitioner are not relevant to the case in hand. That the counsel for the petitioner in bail petition has not denied the recoveries and has only contended that they are the value of Rs,10,000 at the most.
6. Here the learned counsel for the petitioner interjected that nowhere has he conceded that the recoveries are legal, lawful or have been made from the accused, and that in fact the whole case is false and concocted and the recoveries have been planted on the petitioner.
7. The learned counsel for the State further contended that offences are hit by the prohibitory clause of section 497, Cr.P.C. He further contended that as yet some of the co-accused are to be arrested and the bail of the petitioner would affect the investigation at this stage.
8. The learned counsel for the complainant in the F.I.R. Pointed out that there is no enmity between the petitioner and the complainant nor has this been established at any stage. That there are natural witnesses of the fact that theft had taken place in the house of the complainant. He further contended that recoveries have been effected from the petitioner and his co-accused, his son-in- law, as well. That the witnesses of the recovery are notables of the locality and they have no enmity with the petitioner-nor they are related to the complainant. 1988 PCr.LJ 1593, authority cited by the counsel deals with case under section 457/380, P.P.C. But in this case the accused had admitted theft under oath and only the value of the goods stolen was in dispute and yet to be recovered.
Furthermore this was a case of bail before arrest.
9. The learned counsel for the parties have been heard in great detail and the F.I.R. Has been perused minutely. According to the F.I.R. The complainant had come to know of the theft in the morning when he entered the room of his house which had been broken into. However, it has not been alleged as to the precise time when the theft had taken place. The petitioner has been named in the F.I.R. As one of the three who have been alleged to have committed theft. It has been further alleged in the F.I.R. That the stolen property was handed over to one Abdul Malak, the fourth person, named in the F.I.R. Abdul Malak has not been arrested so far nor is there any explanation as to why he has not been arrested. Although, as pointed out in the F.I.R., it has been alleged that the stolen goods had been handed over to the said ,Abdul Malak by the three persons accused of the theft.
10. As pointed out by the learend counsel for the petitioner the recovery effected from the petitioner is of the value of Rs,10,000 only and at present at best it is a case under section 411, P.P.C., the offence with which the petitioner has been further charged with after the alleged recoveries. For the only piece of evidence linking the petitioner with an offence is the said recoveries and the only offence made out is one under section 411, P.P.C. As stated above, punishment for which is 3 years only.
11. Otherwise too there are no witnesses of the occurrence, there is a delay of 20 days in lodging of the F.I.R., the accused/petitioner is no longer required by the police and the person who has been alleged to have received the stolen goods has neither been arrested till date nor any reoveries effected from him, though it had been stated in the F.I.R. In very clear terms that the said Abdul Malak was in possession of the stolen goods. Therefore, it is a fit case for bail.
12. For the reasons stated above, the petitioner is admitted to bail in the sum of Rs,20,000 with two sureties in the like amount to the satisfaction of A.C./Duty Magistrate, Bahawalpur.