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Criminal Miscellaneous No. 2615/B of 1986, decided on 11th November 1986.

---S. 498--Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S. 14--Pre-arrest bail--Registration of case against accused stated to be motivated on account of a habeas corpus petition previously brought by accused against police officers--Theft allegedly committed -a month and a half ago but reported to police only after habeas corpus petition was filed--Stolen articles were said to be in possession of co-accused but nothing recovered from him--Interest of prosecution could be safeguarded by directing accused to join police investigation-Pre-arrest bail allowed and interim bail already granted confirmed in circumstances.

Yusuf Ali Khan Bar-at-Law for Petitioners.

S.D.Qureshi for the State.

Imtiaz Akhtar Buttar for the Complainant.

Petitioners who are accused in a case under section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance VI of 1979, registered at P.S. Narang district Sheikhupura on 19-8-1986 vide F.I.R. No. 145/86 have filed this petition for pre-arrest bail. The case against them was registered on a written complaint moved by Muhammad Rafiq complainant on 19-8-1986 alleging that a theft was committed in his house on the night between 4th and 5th of July, 1986 when the burglars took away a golden 'Gani' weighing 1 Tolas, a tape-recorder, seven suits of Japanese cloth, a 'Burqa', three woollen Chadars, a passport and currency notes worth Rs.600. Delay in lodging the F.I.R. was sought to be explained by stating that the complainant had been trying on his own to locate the culprits and he had now come to know that the theft was committed by the petitioners and their two co-accused Tariq Mahmood and Mauj Din and that the stolen articles were lying with Siraj Din accused.

2. Before proceeding further, it may be pertinently stated that Mauj Din co-accused of the petitioners who is also father of petitioners Nos. 1 and 2 and grandfather of petitioner No.3, had- earlier filed a habeas corpus petition (Criminal Miscellaneous No. 353/H of 1986) in this Court on 5-8-1986 against Ata Muhammad S.H.O. and Raja Muhammad Iqbal S.I. of P.S. Narang, alleging that they wrongfully detained his son Muhammad Ishfaq petitioner No.1 herein. The detenu was recovered through a bailiff who found him in handcuffs in the police station though not formally arrested. His detention was, therefore, held to be unlawful and he was set at liberty .on 6-8-1986, As the threatened arrest of the petitioner was sought to be linked with the filing of the habeas corpus petition, their petition for pre-arrest bail filed directly in this Court was entertained.

3. I have 'heard the learned counsel for the petitioners, the State and the complainant. Learned counsel for the petitioners submits that Mauj Din had not only filed the habeas corpus petition against the police officers of P.S. Narang but after its disposal, he also sent a Complaint to S.P. Sheikhupura on 9-8-1986 alongwith the report of the bailiff and a copy of the order of this Court passed in the habeas corpus petition with the request that action be taken against the said officers. Offended with this action of Mauj Din, police of P.S. Narang manoeuvred the registration of a false case so as to involve therein the said Mauj Din, his sons and grandson i.e. the present petitioners and others. Learned counsel argues that the case is patently false and the version given in the F.I.R., on the face of it, looks to be concocted. According to the learned counsel, if the complainants' house had been really 'burgled and jewellery and other articles stolen, as alleged, there was no earthly reason why the matter should not have been reported to the police forthwith. It is submitted that the delay of a month and half in lodging the F.I.R. without their being any cogent explanation therefore, is per se fatal to the prosecution case. It is pointed out by the learned counsel that although it was alleged in the F . I . R that the complainant had received information that the stolen articles were in possession of Siraj Din accused yet nothing has been recovered from him although he had remained in the police custody. This, according to the learned counsel, exposes the falsehood of the complainants version. Submission of the learned counsel is that the arrest of the petitioners in, this false case would only subject them to humiliation and unjustified harassment.

4. Learned counsel appearing for the State and the complainant, on the other hand, have vehemently opposed the petitioners prayer for bail. It is submitted by them that even if the police could be said to have some grudge on account of habeas corpus petition moved by Mauj Din, the complainant Muhammad Rafiq had no enmity with the petitioners and their co-accused. He has lodged the report with the police genuinely. Learned counsel for the State further submits that the case property is yet to be. recovered from the petitioners and, as such, it is not a fit case for the grant of pre-arrest bail. He has frankly stated that Mauj Din and Muhammad Ishaq accused were arrested but nothing was recovered from them and they have since been discharged from the case. As regards Tariq accused, it is stated that only woollen Chaddars have been recovered from him and his father has paid the price of golden "Gani' to the complainant. Tariq accused is now in the judicial lock-up. It is admitted by the learned counsel for the State that Ata Muhammad S.H.O. and Raja Muhammad Iqbal S.I. were posted in the Police Station Narang when the present case was registered.

5. I have heard the submissions made by the learned counsel for the parties keeping in view the principles regarding the pre-arrest bail laid down in precedent law. I do not wish to make any deeper comment on the merits of the case lest it prejudices the case of any of the parties. It may, however, be observed for the purpose of the present petition that on the admitted facts prima facie, there appears to be some substance in the petitioners' allegation that the police hall some malice/grudge against Mauj Din for his having brought the habeas corpus petition against the police officers of P.S. Narang and for; moving the S.P. to take action against them. Registration of the case may possibly have been motivated on that account. It is also to be noted that the theft alleged to have been committed a month and a half ago was reported to the police only after Mauj Din had filed the habeas corpus petition and sent the complaint to S.P. for taking action against the officers of P.S. Narang.

As regards the argument of possible recoveries from the petitioner, suffice it to observe that it was the prosecution's own case that the stolen articles were stated to be in possession of Siraj Din co-accused and the admitted position is that nothing has been recovered from him. Be that as it may, the interest of prosecution can be safeguarded by directing the petitioners to join the police investigation.

6. In view of what has been stated above, I consider it a fit case for the grant of pre-arrest bail to the petitioners. This application is, therefore, allowed and interim bail already granted to .the petitioners on 29-9-1986 is hereby confirmed. It is, however, directed that the petitioners shall join the investigation as and when required to do so and in case they do not join the investigation, it shall be open to the prosecution to move for cancellation of their bail. Needless to observe that nothing said herein shall influence the decision of the case on merits which obviously would be based on the evidence produced at the trial.

M. Y. H. Bail granted.

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