P L D 2002 Karachi 402
P L D 2002 Karachi 402
Before Wahid Bux Brohi, J
SHAHZADOApplicant
versus
THE STATERespondent
Criminal Bail Application No.206 of 2002, decided on 12th April, 2002.
(a) Criminal Procedure Code (V of 1898)
S. 497(2)Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), Ss.17(3) & 20Bail, grant ofEven if the offence did not fall within definition of "Haraabah" liable to Hadd owing to less number of independent witnesses, yet the facts of the case would constitute an offence of "Haraabah" liable to Tazir punishable under different provisions of Penal Code, 1860 as contemplated under S.20 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979Two versions were given by both the material witnessesComplainant had nominated two persons in F.I.R. but in his further statement he had exonerated one of them and had implicated accused and two other personsNeither name of accused nor his features were described in F.I.R. which was lodged with a delay of more than 17 hoursNo source of information was disclosed in further statement about identity of accusedNothing was on record to show that property was duly identified before Magistrate or that accused had knowledge that same was robbed propertySuch fact was yet to be thrashed out at trialCase of bail having been made out, accused was released on bail.
Muhammad Khan v. State 2001 PCr.LJ 1628; Waris Muhammad v. Haji Ahmad Yar 1976 SCMR 182; Muhammad Tariq v. State 2000 PCr.LJ 1840 and Meeral Gopang v. State 2001 PCr.LJ 1403 ref.
(b) Criminal Procedure Code (V of 1898)
Ss. 154, 161 & 497(2)Supplementary statement of complainantObject ofNo restriction to record further statement of complainant; it could neither be treated as F.I.R. nor part of itObject of further statement was to enable complainant to clarify facts which required some explanation, but if complexion of case was changed as regard identity of culprits, then onus would be on prosecution to cast away the same at trialCourt, for purpose of bail, would be persuaded to draw reasonable inference that guilt of person involved on basis of further statement without rational explanation, would call for further inquiry.
Saeed Muhammad Shah v. State 1993 SCMR 550 and Falak Sher v. State 1995 SCMR 1350 ref.
Muhammad Ayaz Soomro for Applicant.
Muhammad Bachal Tonyo, Addl. A.G. for the State.
Date of hearing: 12th April, 2002.
ORDER
Applicant has been arrested in a case registered at Police Station Jirokhan for an offence punishable under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979.
The incident took place at 300 a.m. on 1872001 when complainant Riaz was taking ice on his donkeycart from Mirokhan to his village. He was accompanied by Arbab Ali on a separate donkey cart who was hired by him. It is alleged that when they reached near Sim Shakh they were intercepted by four persons and on the light of torch the complainant and Arbab Ali were able to identify them to be Ghulam Hussain armed with pistol and Moula Bux armed with gun. The other two were unknown persons. Accused Ghulam Hussain took out Rs.3,000 from the pocket of complainant and then Ghulam Hussain and Moula Bux drove away the respective donkey carts of complainant party, while the other unknown persons kept guard on them and departed after some time. The applicant Shahzado was, however, arrested on 1082001 on the basis of further statement of the complainant and it is the case of prosecution that the donkey and cart of P.W. Arbab were recovered from his house.
Mr. Muhammad Ayaz Soomro, learned counsel for contended that this is a case of two versions nor his features were described in the F.I.R. although it delay of more than 17 hours yet the applicant was involved by the complainant and P.W. Arbab in their further statements. Notwithstanding this drawback no source of information was disclosed in the further statement about the identity of Shahzado. He urged that Moula Bux was exonerated by complainant in his further statement, which contradicts his earlier version. He contended that offence of Harabba liable to Hadd is not made out. He relied on Muhammad Khan v. State 2001 PCr.LJ 1628, Waris. Muhammad v. Haji Ahmad Yar 1976 SCMR 182, Muhammad Tariq v. State 2000 PCr.LJ 1840 and Meeral Gopang v. State 2001 PCr.LJ 1403 in support of his contentions.
Mr. Muhammad Bachal Tonyo, learned Additional Advocate-General opposed the bail on the ground that not only the applicant has been named in the further statement but there is recovery of donkey and cart of Arbab Ali from the applicant, therefore, his case would additionally be covered by the offence under section 412, P.P.C.
I have perused the papers and gone through the authorities cited at the bar. At the outset, it is significant to mention that even if the offence does not fall within the definition of Harabba. liable to Hadd owing to less number of independent witnesses yet the facts would constitute an offence of Harabba liable as Tazir punishable under different provisions of Pakistan Penal Code as contemplated under section 20 of the Offences Against Property (EOH) Ordinance, 1979. The contention that there are two versions given by bout the material witnesses is, however, eminently borne by record. Complainant Riaz has nominated two persons namely Ghulam Hussain ana Moula Bux in the F.I.R, but in his further statement he has exonerated Moula Bux and implicated Sluhzado and has further involved new person namely Ghulam Muhammad and Allah Dino. The statement under section 161, Cr.P.C. of Arbab has also been recorded twice. He, too with the tone of complainant, has changed steps and given a twist to the story as regards identity of culprits.
As regards the intrinsic worth of further statement of complainant, it I may be observed that there is no restriction to record the same (See Saeed Muhammad Shah v. State 1993 SCMR 550) but as observed in Falak Sher v. State 1995 SCAR 1350 it call neither be treated as F.I.R. nor a part of it. Indeed the object of further statement is to enable the complainant to clarify the facts, which require some explanation, but then if complexion of the case is changed as regards identity of culprits then the onus would be on the prosecution to cast away the same at the trial. At least for die purpose of bail in such circumstances, Court would be persuaded to draw reasonable inference that the guild of the person involved on the basis of further statement without rational explanation calls for further enquiry. In the instant case not only the applicant's name has been introduced anew two more names, figures in further statement. As the source of information was an essential requirement to display apparent credibility to such statement which is yet to come on record at the trial, but for the time being the bail can be withheld.
The cited cases render complete assistance to the bail plea. Mr. Muhammad Bachal Tonyo, learned Additional AdvocateGeneral however, submitted that the authorities cited above are distinguishable as the donkey cart belonging to Arbab was recovered from applicant's house. Nothing has come on record that the property was duly identified before a Magistrate or that applicant had knowledge that donkey cart was robbed. The last mentioned point of fact is yet to be thrashed at the trial.
On the whole in view of the above discussion, a case of bail is made out and accordingly the application is allowed. Applicant be released on furnishing surety in the sum of Rs. Two hundred thousand and P.R. Bond in the like amount, to the satisfaction of trial Court.
H.B.T./S189/K
Bail granted.
Before Wahid Bux Brohi, J
SHAHZADOApplicant
versus
THE STATERespondent
Criminal Bail Application No.206 of 2002, decided on 12th April, 2002.
(a) Criminal Procedure Code (V of 1898)
S. 497(2)Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), Ss.17(3) & 20Bail, grant ofEven if the offence did not fall within definition of "Haraabah" liable to Hadd owing to less number of independent witnesses, yet the facts of the case would constitute an offence of "Haraabah" liable to Tazir punishable under different provisions of Penal Code, 1860 as contemplated under S.20 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979Two versions were given by both the material witnessesComplainant had nominated two persons in F.I.R. but in his further statement he had exonerated one of them and had implicated accused and two other personsNeither name of accused nor his features were described in F.I.R. which was lodged with a delay of more than 17 hoursNo source of information was disclosed in further statement about identity of accusedNothing was on record to show that property was duly identified before Magistrate or that accused had knowledge that same was robbed propertySuch fact was yet to be thrashed out at trialCase of bail having been made out, accused was released on bail.
Muhammad Khan v. State 2001 PCr.LJ 1628; Waris Muhammad v. Haji Ahmad Yar 1976 SCMR 182; Muhammad Tariq v. State 2000 PCr.LJ 1840 and Meeral Gopang v. State 2001 PCr.LJ 1403 ref.
(b) Criminal Procedure Code (V of 1898)
Ss. 154, 161 & 497(2)Supplementary statement of complainantObject ofNo restriction to record further statement of complainant; it could neither be treated as F.I.R. nor part of itObject of further statement was to enable complainant to clarify facts which required some explanation, but if complexion of case was changed as regard identity of culprits, then onus would be on prosecution to cast away the same at trialCourt, for purpose of bail, would be persuaded to draw reasonable inference that guilt of person involved on basis of further statement without rational explanation, would call for further inquiry.
Saeed Muhammad Shah v. State 1993 SCMR 550 and Falak Sher v. State 1995 SCMR 1350 ref.
Muhammad Ayaz Soomro for Applicant.
Muhammad Bachal Tonyo, Addl. A.G. for the State.
Date of hearing: 12th April, 2002.
ORDER
Applicant has been arrested in a case registered at Police Station Jirokhan for an offence punishable under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979.
The incident took place at 300 a.m. on 1872001 when complainant Riaz was taking ice on his donkeycart from Mirokhan to his village. He was accompanied by Arbab Ali on a separate donkey cart who was hired by him. It is alleged that when they reached near Sim Shakh they were intercepted by four persons and on the light of torch the complainant and Arbab Ali were able to identify them to be Ghulam Hussain armed with pistol and Moula Bux armed with gun. The other two were unknown persons. Accused Ghulam Hussain took out Rs.3,000 from the pocket of complainant and then Ghulam Hussain and Moula Bux drove away the respective donkey carts of complainant party, while the other unknown persons kept guard on them and departed after some time. The applicant Shahzado was, however, arrested on 1082001 on the basis of further statement of the complainant and it is the case of prosecution that the donkey and cart of P.W. Arbab were recovered from his house.
Mr. Muhammad Ayaz Soomro, learned counsel for contended that this is a case of two versions nor his features were described in the F.I.R. although it delay of more than 17 hours yet the applicant was involved by the complainant and P.W. Arbab in their further statements. Notwithstanding this drawback no source of information was disclosed in the further statement about the identity of Shahzado. He urged that Moula Bux was exonerated by complainant in his further statement, which contradicts his earlier version. He contended that offence of Harabba liable to Hadd is not made out. He relied on Muhammad Khan v. State 2001 PCr.LJ 1628, Waris. Muhammad v. Haji Ahmad Yar 1976 SCMR 182, Muhammad Tariq v. State 2000 PCr.LJ 1840 and Meeral Gopang v. State 2001 PCr.LJ 1403 in support of his contentions.
Mr. Muhammad Bachal Tonyo, learned Additional Advocate-General opposed the bail on the ground that not only the applicant has been named in the further statement but there is recovery of donkey and cart of Arbab Ali from the applicant, therefore, his case would additionally be covered by the offence under section 412, P.P.C.
I have perused the papers and gone through the authorities cited at the bar. At the outset, it is significant to mention that even if the offence does not fall within the definition of Harabba. liable to Hadd owing to less number of independent witnesses yet the facts would constitute an offence of Harabba liable as Tazir punishable under different provisions of Pakistan Penal Code as contemplated under section 20 of the Offences Against Property (EOH) Ordinance, 1979. The contention that there are two versions given by bout the material witnesses is, however, eminently borne by record. Complainant Riaz has nominated two persons namely Ghulam Hussain ana Moula Bux in the F.I.R, but in his further statement he has exonerated Moula Bux and implicated Sluhzado and has further involved new person namely Ghulam Muhammad and Allah Dino. The statement under section 161, Cr.P.C. of Arbab has also been recorded twice. He, too with the tone of complainant, has changed steps and given a twist to the story as regards identity of culprits.
As regards the intrinsic worth of further statement of complainant, it I may be observed that there is no restriction to record the same (See Saeed Muhammad Shah v. State 1993 SCMR 550) but as observed in Falak Sher v. State 1995 SCAR 1350 it call neither be treated as F.I.R. nor a part of it. Indeed the object of further statement is to enable the complainant to clarify the facts, which require some explanation, but then if complexion of the case is changed as regards identity of culprits then the onus would be on the prosecution to cast away the same at the trial. At least for die purpose of bail in such circumstances, Court would be persuaded to draw reasonable inference that the guild of the person involved on the basis of further statement without rational explanation calls for further enquiry. In the instant case not only the applicant's name has been introduced anew two more names, figures in further statement. As the source of information was an essential requirement to display apparent credibility to such statement which is yet to come on record at the trial, but for the time being the bail can be withheld.
The cited cases render complete assistance to the bail plea. Mr. Muhammad Bachal Tonyo, learned Additional AdvocateGeneral however, submitted that the authorities cited above are distinguishable as the donkey cart belonging to Arbab was recovered from applicant's house. Nothing has come on record that the property was duly identified before a Magistrate or that applicant had knowledge that donkey cart was robbed. The last mentioned point of fact is yet to be thrashed at the trial.
On the whole in view of the above discussion, a case of bail is made out and accordingly the application is allowed. Applicant be released on furnishing surety in the sum of Rs. Two hundred thousand and P.R. Bond in the like amount, to the satisfaction of trial Court.
H.B.T./S189/K
Bail granted.
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