1. ' Applicant Mushtaque is facing trial for an offence punishable under sections 380/411/34, P.P.C.
2. Alongwith two others.
3. ' The F.I.R. In this incident was drawn on the basis of written report of Irfan at Police Station Kharadar, Karachi, wherein he mentioned that the carpets brought by him from Peshawar were stolen away.
4. It was indicated therein that Sajawal was responsible for theft of those carpets. The incident took place on 27-12-2001 but the report was lodged on 31-12-2001. Applicant was arrested on 11-1-2002 and on 12th and 13th January, 2002, joint recoveries of carpets were made at Lahore and Faisalabad in presence of three accused persons, namely, Sajawal, Abdul Hameed and applicant Mushtaque.
5. ' Mr. Syed Jawaid Haider Kazmi, learned counsel for applicant, submitted that the F.I.R. Does not put imputation of theft of present applicant as the specific allegation is recorded against Sajawal; there is joint recovery; the search/recovery made at Faisalabad as well as Lahore violates section 166, Cr.P.C. The involvement of applicant is based on version of co-accused recorded during investigation; the offence does not fall within prohibitory clause; and even otherwise in view of the afore-stated circumstances the case calls for further inquiry as to the guilt of present applicant.
6. Miss Masooda Siraj, learned State Counsel, submitted that complainant Irfan in his further statement and so also P.Ws. Abdul Karim and Habib-ur-Rehman have implicated Mushtaque and in particular Abdul Karim has stated that Mushtaque was standing when the main accused was collecting the carpets during the incident.
7. ' On giving anxious consideration to the contentions raised above, I would agree with learned counsel for applicant that the offence does not A fall within prohibitory clause of section 497, Cr.P.C.
8. There is delay in lodging of F.I.R., yet the active role of commission of theft is not assigned to the applicant, the recovery was joint and not from exclusive possession of present applicant and even on the basis of the statements of witnesses the guilt of applicant would call for further inquiry.
9. Consequently, the bail plea is accepted.
10. ' The application is allowed. The applicant be released on furnishing surety in the sum of Rs,50,000 (Rupees fifty thousand) and executing P.R. Bond in the like amount to the satisfaction of the trial Court. .