In F.I.R. No.160 Police Station East Cantt. Peshawar dated 2-4-1991, Gohar Rehman, Advocate, reported the theft of his Motor Car No. Karachi 9459 Model 1990 Toyota Corolla of black colour from the Court's premises the same day. After the arrest of Khalid Mehmood co-accused in F.I.R. 281, dated 23-5-1991 he recorded a confessional statement on 4-6-1991 wherein he also confessed the car lifting of Gohar Rehman, Advocate, complainant from the Court's premises in collaboration with his co-accused Suhail and Syed Gulzar Hussain Shah, S.I. The accused-respondent and resultantly the stolen car original No. Karachi 9459 and forged No.7068 was recovered from Usmania Bargain Centre in the proprietorship of Ghulam Farid and Muhammad Riaz P.Ws. Vide recovery memo, dated 15-6-1991. Khalid Mehmood co-accused has charged Suhail and Syed Gulzar Hussain Shah, S.I. In the car lifting of some four vehicles in his said confession and also spoke out the details of their modus operandi in the commission of the offences of car lifting and disposal of the vehicles.
Ghularn Farid P.W. The owner of the Bargain Centre, from whose custody the stolen car was recovered, had made statements under sections 167 and 164, Cr.P.C. To the effect that Khalid Mehmood, Muhammad lqbal and S, Gulzar Hussain Shah, S.I. The accused-respondent had brought the stolen car to his Bargain Centre for sale and on his checking the documents, finding the same correct he struck a bargain for Rs.2,50,000 and in lieu he gave one Suzuki Auto car valuing Rs.1,10,000 and promised to pay the remaining amount in cash within 15 days. Later on he had learnt through daily newspapers that co--accused Khalid Mehmood was apprehended by the police for car lifting and that Syed Gulzar Hussain Shah S.I. Accused-respondent was also arrested by the police in the said case as a co-accused. He thus suspected a foul play that he was perhaps also sold a stolen car. He went to police station and was apprised that the car in question was also a stolen property which he accordingly handed over into the police custody against a recovery memo. He also stated that the three accused including the accused-respondent had also earlier given to him one Toyota Corolla Car 1982 Model of white colour some three months back. In his confessional statement Khalid Mehmood co-accused has also mentioned one Jehanzeb an employee of a Labour Court to have helped the gang in facilitating the commission of the offences.
Jehanzeb was examined as P.W. Under section 164, Cr.P.C. During investigation and he stated that Suhail, Iqbal and Syed Gulzar Hussain Shah, S.I. Had formed an organized gang for car lifting and had lifted many cars from District Court and other places. S. Gulzar Hussain Shah accused- respondent had also confessed his guilt before the Investigating Officer in his statement under section 161, Cr.P.C. And further did not forward with any plea of innocence and non-involvement in the offences. In the case the learned Sessions Judge allowed him a bail under observations that the complainant himself was a friend of the accused party and that the car in question was by itself a stolen property and that the case was not covered under section 5 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and that the evidence was not to lead to conviction for Hadd and then it would be of no use to keep the accused-respondent in custody. He has also referred to an order of the Peshawar High Court, Peshawar, dated 31-7-1991 vide which the accused respondent was allowed a bail in another case.
2. Vide F.I.R. No. 422 Police Station East Cantt. Peshawar, dated 11-7-1991 Muhammad Iqbal Khattak, S.H.O. Recorded a report that during the interrogation of Khalid Mehmood co-accused it transpired that he alongwith S. Gulzar Hussain Shah accused-respondent and one Muhammad Iqbal and Jehanzeb a driver in the Labour Court had also stolen Suzuki No.IDC 8689 of white colour Model 1988 on the night of 8-3-1991 during a marriage feast but no case was registered. It was ascertained that the said car belonged to one Ahmad Shah son of Yar Muhammad who had come to Pearl Continental Hotel to attend a marriage party that the car was stolen. On 14-7-1991 the said car with a forged No.PRN-8689 was recovered from the possession of one Muhammad Zaman.
Muhammad Zaman stated that he was a driver of this car and that its owner was one Amir Ahmad Khan son of Zarkhali Khan of Matki Bizan Khel, Bannu. Amir Ahmad Khan stated that he has purchased Car No.IDD-2200 from his relation Khalil Nawaz and afterwards he sold the same car to Khalid Mehmood co-accused at Rs.3,60,000 only, out of which Rs.50,000 were paid in cash and the remaining was to be paid to him after three months but he has not paid the amount as yet. He stated that after some days he went to the house of Khalid Mehmood co-accused when he met S. Gulzar Hussain Shah, S.I. With Car No.PRN-8689 of white colour which S. Gulzar Hussain Shah sold to him for Rs.1,41,000 and the said car was delivered by him to Muhammad Zaman his driver. His above statement was recorded under sections 161 and 164, Cr.P.C. Jehanzeb and Muhammad Iqbal were also examined and they also stated the involvement of Khalid Mehmood and Suhail co- accused and S. Gulzar Hussain Shah, S.I. Accused-respondent. S. Gulzar Hussain Shah, S.I. Did not come forward with a detailed statement during interrogation. He stated that he had old relations with Khalid Mehmood co--accused which he had since severed and that he had got no concern with the car lifting cases. The learned Sessions Judge granted a bail to the accused respondent under observations that he had remained in police custody for a sufficient time but during the period he has neither confessed his guilt nor made any pointation leading to the recovery of the stolen car.
3. Mr. Khalid Khan, Assistant Advocate-General and Mr. Munir Khan, Advocate, for the accused- respondent were heard at length. The Investigating Officers were called alongwith record. There have since been prepared challans in the cases and Khalid Mehmood and Suhail co-accused and S. Gulzar Hussain Shah accused-respondent have been assigned as accused in both the cases.
May it be stated that this is no ground to favour an accused with bail if somehow or the other his case is not covered by the offences described in section 5 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. The offence of theft under section 379, P.P.C. Is also punishable with three years imprisonment or fine or both and is also non--bailable. In case of a non-bailable offence the accused shall be released on bail only if there are not reasonable grounds for believing that he has committed the offence and that there are sufficient grounds for further inquiry into the guilt. Further, it is also no good ground that an accused has remained in police custody and he has not confessed his guilt or any pointation leading towards recovery. The learned Sessions Judge appears to have favoured the accused respondent with a bail for no valid reasons. The evidence collected in the cases by the prosecution was to report reasonable grounds for believing that the accused-respondent had committed the non-bailable offences. Confession o: co-accused Khalid Mehmood, evidence of the Bargain Centre owners, evidence of Amir Ahmad the other owner of the car, the evidence of Muhammad lqbal and Jehanzeb and other circumstantial evidence were all to spell out reasonable grounds that the accused-respondent has committed the heinous crime of car lifting and he had been the ring leader and had also provided protection and shelter to his co-accused to facilitate the perpetration of the crime. Herein a police officer a custodian of law has been prima facie found involved in the perpetration of the crime of car lifting and no leniency whatsoever should be shown by the Courts in extending him the concession of bail.
4. This Court would accordingly accept the bail cancellation application filed by the Advocate- General, N.-W.F.P. And bail granted to accused respondent an S.I. In police is hereby cancelled. He is present in Court, arrested and delivered into the police custody.
5. Before parting this Court would also recommend to the Federal Government to make suitable amendment in the Pakistan Penal Code in order to provide a reasonable punishment commensurate with the gravity of the Offence of theft like car lifting etc. In this context it is remarked that offences liable to Hadd brought home to the accused after the prescribed mode of proof are to be awarded bodily punishment. In case of an offence of Zina liable to ---Tazeer--- besides imprisonment and fine there has also been prescribed a bodily punishment in stripes under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979. For offences of theft and `Haraba' liable to `Tazeer' there should also be prescribed bodily punishment in stripes along with imprisonment and fine. A copy of this judgment shall be sent to the Secretary, Ministry of Law and Justice, Government of Pakistan, Islamabad for favour of consideration and further action.