' By this order, I intend to dispose of Criminal Bail Application No,44 of 2001 filed on behalf of applicants Dost Muhammad alias Dosoo and Mazhar Ali alias Mazar, both Mahar by Caste, arising out of crime F.I.R. No,36 of 2000, Police Station Abad, for an offence under sections 380/457, P.P.C.
The bail plea of the applicants was dismissed by the two Courts below i.e, Judicial Magistrate, Jacobabad and learned Sessions Judge, Jacobabad by two separate orders, dated 29-11-2000 and 9-2-2001, respectively.
2. The prosecution story, as enunciated in the F.I.R. Is that on 30-9-2000 at about 3-00 p.m.
Complainant Abdul Fatah Pechuha appeared at Police Station Abad, District Jacobabad and lodged F.I.R. Alleging that he owns a Kiryana shop in village Garhi Mehrab which was being run by complainant himself and his nephew Muhammad Ali Pechuho. The shop was electrified from inside and outside. On 28-9-2000, the complainant after closing the shop slept in front of it and his brother Khadim Hussain and nephew, Muhammad Ali, slept on separate cots. At about 3-00 p.m.
They heard commotion coming from the shop and consequently all the three woke up and identified (1) Dost alias Dosoo, being armed with hatchet, (2) Mazhar alias Mazar, and (3) Ali Sher alias Sheral, accompanied by two unidentified persons, whom they could identify if seen, were armed with Lathies. The culprits, after commission of the theft, were fleeing and, at this juncture, the complainant and eye-witnesses raised cries, but the culprits, taking advantage of streets, decamped from the scene of offence. On opening gate of the shop, it was found that the window on the eastern side was broken and the articles were stolen. On verification, the stolen articles were sorted out, the details of which have been given in the F.I.R. The F.I.R. Further shows that the complainant and witnesses approached the accused for return of stolen articles, but they were told to wait for two days and, thereafter, the articles could be returned to them. Having failed, the complainant approached the concerned police for registration of the F.I.R. Which was recorded as above. The investigation followed and, in due course, the applicants were sent up to stand trial in the Court of Judicial Magistrate, Jacobabad.
3. It has been argued by Mr. Muhammad Ayaz Soomro, learned counsel for the applicants, that F.I.R.
Is delayed by two days, inasmuch as the incident had taken place on 28-9-2000 whereas the report was recorded on 30-9-2000, the offence is punishable below seven years and as such the bail is to be granted as a rule, the statements under section 161, Cr.P.C. Were recorded on 1-10-2000 i.e, after three days. He has referred to the cases of Manzoor Ali alias Mumtaz v. The State 2001 PCr.LJ 344 which is being followed in the case of Tariq Bashir and others v. The State PLD 1995 SC 34.
He has also referred to the cases of Mehga v. State 1994 PCr.LJ 86 and Ayaz Ali v. State 2000 PCr.LJ 1031, the last two citations are on the point of delay in recording of F.I.R.
4. Learned State Counsel, while opposing the bail plea on behalf of the applicants, argues that as far as the delay in recording of F.I.R. Is concerned, it is well-explained inasmuch as immediately after the commission of the theft, the applicants were approached by the complainant party for return of the stolen property, but they were told to wait for two days. After two days, when they approached the applicants for return of the stolen property, they were refused point blank. He further argues that the applicants were properly identified by complainant and the eye-witnesses.
It has been further contended that, on 7-10-2000, the stolen property was secured from the possession of the applicants, that the offence is punishable with 14 years R.I. And, as such, it falls within the prohibitory clause of section 497(1), Cr.P.C. And, lastly, that it is a case where no background of enmity is involved and as such, there could be no false implication. He has referred to the case of Muhammad Rauf v. State 2000 Cr.LJ 776, in support of his arguments.
5. I have given my anxious thought to the arguments of the learned counsel for the respective parties and perused the record. Admittedly, the names of the applicants appear in the F.I.R., they were properly identified during the course of incident under electric light. There was also a recovery of the stolen property from the applicants, the details of which have been given in the F.I.R. As regards the arguments of the learned counsel for applicants, that there is delay in lodging the F.I.R., the same has been properly explained inasmuch as immediately after the occurrence, the applicants were approached for return of the stolen property and, for that the complainant were told to wait for two days but, later on, they refused point blank and kept on procrastination. The citations, referred to by the learned counsel for the applicants on delay in recording F.I.R. Have no force on the facts and circumstances of the case. Perusal of section 457, P.P.C. Shows that it is divided in two exceptions, i.e, the exceptions (I) and (H). As far exception (I) is concerned, it is punishable for seven years and, exception (II) is punishable up to 14 years. In the case referred by learned counsel for the applicants, namely Manzoor Ali alias Mumtaz and others (supra) in which the bail was granted, holding that the offence is punishable up to seven years. Whereas, in the instant case, the offence falls in exception (II) of section 457, P.P.C. And punishment provided is 14 years, which is covered by Prohibitory clause of section 497(1), Cr.P.C. The culprits were identified on the light of bulbs. It was further observed in the order of the learned Judge at the Chamber that incident had taken place during the dark hours of night and there was no source of light. Having due regard to the referred citation, it is observed that the facts and circumstances of the cited case are absolutely different from the facts and circumstances of the case in hand.
6. Looking to the above background and the law cited at the Bar, I am of the view that the learned counsel for the applicant has not been able to make out a case for bail, which accordingly is dismissed.
7. The observations made hereinabove are confined only to this bail application. They are to be considered as tentative in nature by the learned trial Judge in so far as trial of the main case is concerned. The learned trial Judge will decide the main case in accordance with law, uninfluenced by whatever is observed hereinabove.