' Muhammad Latif complainant got recorded F.I.R. No,15, dated 15-1-1999 at Police Station Mochiwala, District Jhang under section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance No,VI of 1979 with the allegation that on 6-1-1999 at 10-00 p.m. Mukhtar Ahmad alias Mokha petitioner-accused armed with a rifle alongwith his co-accused Anwaar armed with .12 bore gun, Zafar alias Bhoori armed with pistol, Zafar son of Khan armed with Sota, Nasir armed with .12 bore gun, Aflatoon alias Afla armed with rifle, Sahib alias Bhapi armed with Sota and Sibt-i- Hassan alias Sibba armed with rifle trespassed his house while he was present there alongwith his son Hafiz Muzamal Subhani and Haq Nawaz. The aforesaid accused are said to have given the Sota and Butt blows on the persons of the complainant and the P.Ws. They are alleged to have forcibly removed four heads of buffaloes all valuing Rs,1,25,000 as well as cash amount of Rs,3,000 and one blanket. They are said to have tied the complainant and the aforesaid P.Ws. With ropes and left the place by issuing the threats. The alarm of the complainant and the P.Ws. Attracted Noor Akbar Khan and Muhammad Aslam P.Ws. Who were staying with him as the guests. The ropes were untied from their persons. They (P.Ws.) followed the footprints which reached the sugarcane crop of Sahib Ali accused where two heads of buffaloes were tied with a tree which were taken into possession while two heads of buffaloes were not available. Afterwards the accused are said to have been contacted who made the promise to return the head of cattle but resiled. He prayed for taking the legal action. The law was set in motion.
2. Both Nasir and Zafar (son of Khan) accused were arrested on 25-1-1999. Mukhtiar Ahmad alias Mokha petitioner-accused and his co-accused Anwaar were arrested on 10-2-1999. Sibt-i-Hassan alias Sibba co-accused has been declared as innocent. The proceedings under section 87/88 of the Code of Criminal Procedure have been initiated against Alfatoon, Sahib Ali and Zafar alias Bhoori accused persons as they could not be arrested by the police.
3. While on physical remand Mukhtar Ahmad alias Mokha petitioner-accused is said to have led to the recovery of one head of buffalo from his house situated in Chak No,169/JB on 17-2-1999 which was taken into possession vide memo. Attested by Muhammad Latif son of Ghulam Muhammad, resident of Chak No,213/JB and Noor Akbar Khan, resident of Chak No,183/JB. However, no recovery could be effected at the instance of the aforesaid remaining arrested accused persons. The bail applications of the aforesaid accused were dismissed who moved the learned Sessions Judge.
Nasir co-accused was admitted to bail on 17-3-1999 while Zafar son of Khan co-accused was admitted to bail They 7-4-1999. The bail plea of Anwaar co-accused was accepted on 21-4-1999.
They were admitted to bail on the ground that no recovery of the stolen cattle has been effected at their instance. The bail application of Mukhtar Ahmad alias Mokha petitioner-accused was dismissed on 21-4-1999 by the learned Sessions Judge, Jhang on the ground that he led to the recovery of one head of buffalo from his house on 17-2-1999. He, accordingly, has moved this Court for his admission to bail through the filing of this petition.
4. I have heard the learned counsel for the petitioner as well as the learned State Counsel and gone through the record before me. Learned counsel for the petitioner has raised the points that the occurrence took place on 6-1-1999 while the matter was reported to the police on 15-1-1999, that according to the recitals of the First Information Report Muhammad Latif complainant as well as his son Hafiz Muzammal Subhani and Haq Nawaz P.Ws. Were given the Butt blows and Sota blows who did not get themselves medically examined and that the alarm raised by Muhammad Latif complainant is said to have attracted Noor Akbar and Muhammad Aslam P.Ws. Who were staying with him as guests while no person from the village is recorded to have arrived at the spot and that the aforesaid aspects are enough to make doubtful the initial occurrence so as to rope in the petitioner. He added that at best it is a case prima facie falling under section 411, Pakistan Penal Code as there is no evidence that the petitioner received the heads of cattle stolen in that commission of a dacoity so as to attract section 412, Pakistan Penal Code. He continued that the recovery memo. About the taking into possession of stolen buffalo at the instance of Mukhtar Ahmad alias Mokha petitioner-accused is attested by two P.Ws. Who are not residents of Chak No,169/.JB and there is violation of mandatory provisions of section 103 of the Code of Criminal Procedure. In this respect he also pointed out that Noor Akbar witness of recovery memo. Is also mentioned as a witness in the First Information Report. He made the point that the aforesaid circumstances are enough to make out that the attraction of section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance No, IV of 1979 as well as section 412, Pakistan Penal Code is a question of further inquiry and for that reason this petition is entitled to be admitted to bail as section 411, Pakistan Penal Code does not fall within the prohibitory clause.
5. On the contrary learned State Counsel laid the emphasis that it is a clear-cut case of "Harabah" falling under section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance No, VI of 1979 as well as section 412, Pakistan Penal Code and the petitioner is not entitled to be admitted to bail who took the law in his hands.
6. At the query made by this Court Asghar Ali, S.-I. Present in Court has intimated that no other case of cattle lifting is pending against Mukhtar Ahmad alias Mokha petitioner-accused.
7. I would express that the reasoning adopted by the learned counsel for the petitioner has to prevail. The aforesaid narration of the circumstances towards the initial occurrence has made out that the same shall have to be viewed with caution. There is delay of ten days in reporting the matter to the police. Even though the three prosecution witnesses including Muhammad Latif complainant are said to have been injured yet their medical examination was not got conducted and this is the admitted position. No person from Chak No,268/JB wherein the occurrence took place is said to have arrived at the spot on the alarm made by the complainant alongwith the prosecution witnesses. Only two guests named as Noor Akbar and Muhammad Aslam reportedly staying there reached the place of occurrence. In the circumstances I hold that the forcible removal of the buffaloes from the Dhari of Muhammad Latif complainant is a question of further inquiry and the prosecution shall have to establish this fact during the trial through the production of the convincing and confidence inspiring evidence keeping in view the rule that an accused person is innocent unless he is convicted. This is one aspect of the matter. The other aspect of the matter is that even the recovery of the buffalo at the instance of Mukhtar Ahmad alias Mokha petitioner is not according to the mandatory provisions of section 103 of the Code of Criminal Procedure as the recovery witnesses named as Muhammad Latif is resident of Chak No,213/JB and Noor Akbar has his place of abode in Chak No,183/JB while the alleged place or recovery is situated in Chak No, I69/JB. In view of the findings of this Court in the last-mentioned para. Mukhtar Ahmad alias Mokha is prima facie liable under section 411, Pakistan Penal Code which does not fall within the prohibitory clause. Keeping in view the maximum punishment of three years under section 411, Pakistan Penal Code it can safely be held that the offence for which Mukhtar Ahmad alias Mokha petitioner-accused has been arrested does not fall within the prohibitory clause. No other criminal case of cattle lifting has been registered against him. The investigation has been completed and the petitioner is in the judicial lock-up. Keeping in view the aforesaid aspects I have to express that the dictum enunciated in Tariq Bashir and 5 others v. The State PLD 1995 SC 34 and Abdul Hameed Siddique and 2 others v. The State 1993 PCr.LJ 446 (Karachi) is attracted wherein it has been held that the grant of bail in a case where the offence does not fall within the prohibitory clause is a rule while its refusal, an exception. No apprehension about the likelihood of abscondence of the accused, tampering with the prosecution evidence by him and the danger of the offence being repeated by the petitioner if released on bail has been expressed by the learned counsel for the State. The accused-petitioner is not a previous convict.
8. In view of what has been said above, I hold that it is a fit case to exercise the discretion in favour of Mukhtar Ahmad alias Mokha petitioner accused for the purpose of his admission to bail. I, therefore, accept this application and admit Mukhtar Ahmad alias Mokha petitioner-accused to bail in the sum of Rs,30,000 (Rupees thirty thousand only) with one surety in the like amount to the satisfaction of the learned Area Magistrate with the direction to appear before the learned trial Court on every date of hearing failing which the learned trial Court may cancel his bail.