ORDER SHAFI MOHAMMAD I, J.- Applicants Muhammad Yaseen and Sajid Hussain are facing trial in a case arising out of an F.I JR. No. 533/94 U/S 17(3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979 registered at Police Station Korangi, Karachi lodged by complainant Baboo Khan s/o Haji Ali Buz on 2.9.1994 in respect of an incident which had taken place on 30A1994.
2. According to the prosecution stray, as narrated by the complainant at the time of lodging the F.I.R., two young boys armed with T.T. Pistols entered into his office and robbed him at the strength of those i.e-arms. Their names, later on, came to his knowledge to be Sajid and Yaseen. As alleged in the FIR, the complainant was deprived of his cash of Rs.21,600/-{Rs.l0,2G0/- from his pocket and Rs.11,400/- from drawer of his table), one Citizen wrist watch and one golden that he chased the accused as soon as they left his office and found another accused also standing out of his office whose name came to his knowledge, later on, as Sajjad. These accused were living in Madina Manzil Sector 33/A Korangi Karachi When the complainant failed to search them, he came to the Police- station and lodged report against Sajid, Yaseen and Sajjad fra depriving him of his cash, watch and golden ring.
3. The Police arrested Sajid Hussain and Yaseen from Madina Manzil on their Plantation arrested accused Sajjad also. Investigation was completed and police challaned .The three accused by submitting charge-sheet No.204/94 on 15.9.1994 wherein recovery has been shown as under :-
(i) Rs.500/-each from Sajid Hussain and Muhammad Yaseen.
(ii) N.I.C, of complainant from accused Yaseen and (i.e) Wrist/watch from accused Sajjad Hussain.
3. It appears from the record that statement of the complainant u/s 161 Cr.P.C, was recorded between the night of It and 2nd September, 1994 and in that statement the names of all the accused persons were also mentioned. The statement is signed by SI/SHO Ch. Shahbaz Khan and the date written below his signature is 2.9.1994. It is, thus, clear that the F.I.R, of the incident was registered by the said police-officer, more or less, 20 hours after recording the statement of the complainant. In these circumstances, it seems to be an irony to observe that the S.H.O, in column No.5 of the FIR, puts the burden of delay, in lodging the FIR, on the shoulders of the complainant. I have avoided to bring on record the contradictions between the statement of the complainant u/s 161 Cr.P.C, and the contents of the F.I.R because it could damage the case of the prosecution or the accused However, the conduct of the I.O./SHO Shahbaz Khan cannot be ignored if judged in the light of the above-mentioned difference.
The date appearing on mashirnama of arrest is 2.9.1994 when accused Sajjad Hussain and Muhammad Yaseen were arrested from Madina Building Sector 33/E Korangi Karachi and nothing was recovered from them on that date but mashirnama of recovery, which was prepared cm 13.9.94, shows that recovery of the above-mentioned articles was done from the same building by another S.I./SHO namely, Qurban Ali Bhatti It is not clear from the record when investigation of this case was transferred to the new S.H.O. It is also not dear what progress had been shown by the previous I.O. From 2.9.1994 till recovery of stolen property on 13.9.1994 by the new I.O./S.H.O.
Besides the above sorrowful and poor investigation, as observed by this Court from the record, the success shown by the police officials in recovery of Rs.500/- only from each accused and a watch besides National Identity Card of the complainant which was even not mentioned in the FIR Hence, there remains no doubt, that the FIR whs lodged carelessly and in total disgrace of legal requirements.
4. Another important aspect, which cannot be ignored by this Court, is that most of the police officials, especially the I.Os, usually neglect the provisions of law to be properly applied in the charge-sheet. The charge-sheet, in this case, being No.204/94 dated 15.9.1994, was submitted before the learned Sessions Judge (East) Karachi under section 17(3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (herein after referred as 'the Ordinance'). No doubt this section of the Ordinance is found in the FIR because the value of property was more than 'Nisab' as defined in section 6 read with section 8 of the Ordinance. But the ultimate result of investigation was obvious i.e. Recovery of Rs.500/- from accused Sajid and Rs.500/- from Muhammad Yaseen and wrist watch from Sajjad, without mentioning the value of that watch. It is not known how the SJ./SHO Qurban Ali Bhatti has inserted section 17(3) of the Ordinance in the Charge-sheet when the value of articles recovered by him is not known and is apparently, below "Nisab".
5. Similarly, un-explained delay in lodging the FIR by the police has been alleged against the complainant, but the record shows that the I.O. Of the case deliberately avoided to lodge the report between the night of It and 2nd September, 1994 when THE statement of the complainant u/S 161 was recorded. Such conduct needs proper investigation to be conducted by the higher officials. It would be proper that S.P. District East be good enough to hold enquiry in this case on the following fines:(i) When statement of the complainant was recorded between the It and 2nd September 1994 and it disclosed cognizable offence, why F.I.R, was lodged after about 20 horns?
(ii) When the accused were arrested on 2.9.1994 from Madina Manzil (Building) Sector 33/E Korangi, why the recovery was not made on the same day? And what progress had taken place in the case fromAbditI Ghaflaer ud others V Judge Special Coart No. 1 (Riiax Ahmad, J) 2.9.1994 till recovery of Rs.1000/- (out of Rs,600/-) as shown on 13.9.1994.
6. Unexplained delay in lodging the F.I.R., recovery of only a watch and Rs.1000/- (Rs.500/- each from two accused out of Rs.21,600\-) after about 11 days of the arrest of the accused from the same place, no recovery of weapons, no recovery of golden ring and no statement of the accused under section 164 Cr.P.C, coupled with most shocking and sorrowful investigation as pointed out in the aforesaid lines, left no doubt in any mind that there were not reasonable grounds for believing that the accused had committed the offence under section 17(3) of the Ordinance, as alleged against them but there were sufficient grounds for further enquiry into their guilt.
Hence by my shot order dated 21.12.1994 they were ordered to be released on bail on furnishing solvent surety in the sum of Rs.50,000/- each and P.R. Bond in the like amount to the satisfaction of the trial Court cm account of the reasons discussed above.
The copy of this order be sent to the I.G. Police Sindh for information as well as to the S.P. District Karachi East for holding proper enquiry who is required to send his report to this Court after completing the same within one month from today.