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Criminal Miscellaneous No. 59/B of 1986, decided on 25th February, 1986.
---S. 497--Penal Code (XLV of 1860), S. 411--Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 9--Bail, grant of--Accused surreptitiously got away with an electric generator from complainant's shop but apprehended shortly thereafter alongwith stolen property--Accused, held, liable under S. 411, P.P.C. and not under S. 9 of Hudood Ordinance, in circumstances--Accused allowed bail.
Ibadur Rehman Lodi for Petitioners.
S.M. Ghazi for the State.
According to a case registered under section 9 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (VI of 1979), by the Police of Station City, Rawalpindi against the petitioners, vide F.I.R. No. 321, dated 28-12-1985, at the instance of Fazal Qadir, the complainant, on 28-12-1985, near about 1-45 p.m, when the complainant was attending his customers in his shop named and styled as Golden Machinery Store, City Saddar Road, Rawalpindi, two unknown persons came to the shop and thereby availing of an opportunity stole away a generator worth Rs.6,500 from the complainant's shop. The complainant alongwith one Nasir Qureshi went out in search of the persons and apprehended the petitioners when they were standing by a Suzuki Stand. Both of them were holding the generator covered by a piece of cloth. The complainant removed the cloth and found out the generator which was stolen from his shop, then he shouted thieves, upon which certain other persons gathered there. The persons who had gathered there also gave beating to the petitioners. Thereafter, the petitioners alongwith the generator were taken, towards the police station. When the complainant and his companion were on their way, the Investigating Officer met them whom they informed about the incident. The petitioners were arrested by him.
2. The learned counsel for the petitioners has contended that section 9 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 is not applicable to the facts of the case since the proof of the same requires, under section 7, two independent witnesses apart from the victim of the theft unless that requisite is there, the offence cannot be treated as having been committed under the said section and so in such a case the offence which can if at all be made out, will be that of section 411, P.P.C. and the sentence provided under section 411, P.P.C., is up to three years' imprisonment of either description, so the prohibitory clause does not hit the case.
3. The learned counsel for the State has admitted the legal position obtaining in the case.
4. In view of the submission of the learned counsel for the petitioners that the prohibitory clause is not applicable as to the offence constituted in the circumstances, the petitioners are admitted to bail subject to their furnishing security in the amount of Rs.20,000 (Rupees twenty thousand) each with ode local surety in the like amount to the satisfaction of the trial Court.
S.G.D. Bail granted.
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