' Having refused the concession of bail by the two Courts below vide their orders dated 27-3-1999 and 13-4-1999 respectively, in case F.I.R. No,381 dated 3-11-1998 registered at Police Station Naurang under section 457/380, P.P.C., the petitioner has filed the application in hand for the same relief.
2. The case of the prosecution as disclosed in the F.I.R. Is that the complainant, who is a spare-parts shopkeeper in Mashal Khan Market, had closed his shop as usual on 2-11-1998 at 08.30 hours and on the following day when he came back and opened it, he found that its roof was broken by a hole and articles of various descriptions, detail fully given in the F.I.R., were found stolen. He, however, charged none for the same but stated that he will charge the accused when he became known to him.
3. The local police during investigation of the case arrested the petitioner on 5-11-1998 who was interrogated and on the following day was produced before the Senior Civil Judge/Judicial Magistrate Lakki, where his statement, in the form of confession, was recorded. He applied for bail before the Judicial Magistrate which was allowed on 16-11-1998. Thereafter, the complainant moved a bail cancellation application before the Sessions Judge Lakki but, subsequently, on his statement, the same was dismissed as withdrawn vide order dated 21-12-1998. However, the Prosecuting Inspector moved another application for cancellation of the bail of the petitioner which was allowed and his bail was recalled by the learned Additional Sessions Judge Lakki, per his order dated 13-4-1999. Hence the instant application.
4. Learned counsel for the petitioner submits that his client is not charged in the F.I.R., that according to the statement of the complainant recorded in Court on 24-3-1999, he has neither charged him before the police nor in the Court and, as such, the petitioner is innocent.
5. It was further contended that the occurrence was of mid-night not witnessed by any-one and in the circumstances of the case, at the most, in view of the recovery of the stolen articles from the petitioner, the case would fall under section 411, P.P.C, which carries maximum punishment of three years and does not fall under the prohibitory clause of section 497, Cr.P.C. He next argued that the petitioner is behind the bars for the last six months being arrested on 5-11-1998 and, therefore, deserves the concession of bail. In support of his contentions, reliance was placed on the case of Muhammad Tariq v. The State NLR 1998 Shariat Decisions 3.
6. On the other hand, learned counsel for the State opposed the bail application on the ground that the petitioner has made a confessional statement and in view of the recovery of the stolen articles from his possession, he is not entitled to the concession of bail.
7. I have given my anxious thoughts to the submissions made by the learned counsel for the parties and have examined record of the case. It is an undisputed fact that the occurrence has taken place in the dark-hours at night and nobody has witnessed the same. The confessional statement on which the prosecution relies is exculpatory in nature to the effect that he is a taxi- driver and the stolen articles shown by him voluntarily to the S.H.O. Were given to him by accused Muhammad Ayaz, Noorullah and Ajab Din. Moreover, the statement of complainant is of more significance for the purpose of determining the fate of this bail application, as he has totally exonerated the petitioner and has declared him innocent. It is also worth consideration that, prima facie, there is only recovery of the stolen goods from the petitioner and, as such, the case would fall under section 411, P.P.C., which is not covered by the prohibitory clause of section 497, Cr.P.C. In the circumstances, the case of the petitioner falls within the scope of further inquiry entitling him to the concession of bail.
8. As a result, I accept this application and allow bail to the petitioner subject to his furnishing bail bond in the sum of Rs,one lac with two sureties each in the like amount to the satisfaction of Illaqa/duty Magistrate.