Monday, 23 June 2014

Further Inquiry is a strong ground for Bail

PLJ 2014 Cr.C. (Lahore) 402
[Bahawalpur Bench Bahawalpur]
Present: Shahid Bilal Hassan, J.
MUHAMMAD TAYYAB--Petitioner
versus
STATE etc.--Respondents
Crl. Misc. No. 793-B of 2013, decided on 4.6.2013.
----S. 497(2)--Pakistan Penal Code, (XLV of 1860), S. 411--Bail, grant of--Further inquiry--Case against the petitioner has been lodged with a delay of one and half month which was unexplained and there was no direct evidence available with the complainant against the petitioner--Evidentiary status of the alleged recovery from the petitioner so as to connected him with the commission of Section 380, PPC can be seen and determined by the trail Court after recording of evidence--Mere registration of other criminal cases against the petitioner cannot disentitle him to bail particularly when the prosecution is silent on the question of conviction of the petitioner in the said alleged cases--Detention of the petitioner incarceration will not serve any useful purpose because the challan has been submitted in the trial Court but there is yet to be any progress, which accordingly is at initial stage and as such in absence of any exceptional circumstances grant of bail to an accused is a right, which should be given to the accused and refusal is an exception--Bail accepted.  [P. 404] A & B
2012 SCMR 573, 2009 SCMR 1488, 2011 SCMR 1708 & PLD 1995 SC 34, rel.
Mr. Tariq Mehmood Khan, Advocate for Petitioner.
Mr. Asghar Ali Gill, Deputy Prosecutor-General for Respondents.
Date of hearing: 4.6.2013.
Order
Complainant despite service has opted to remain absent.
2.  Petitioner seeks post arrest bail in case FIR No. 81/2013 dated 01.3.2013 registered under Sections 380, read with Section 411 of The Pakistan Penal Code, 1860 at Police Station Pacca Laran, District Rahim Yar Khan at the instance of one Raja Muhammad Akbar son of Raja Muhammad Ashraf.
3.  Allegations in brief as contained in the Crime Report are that during the night between 20/21.01.2013 one buffalo, ox, cow and two calf valuing Rs.5,00,000/- of the complainant were found missing and stolen. On query, the complainant came to know that one YaseenAsghar Reham Ali, Jalil Ahmad and Muhammad Tayyab(petitioner) had stolen the said cattle etc, which fact was admitted and confessed before the complainant party by the accused party.
4.  The learned counsel for the petitioner maintained that the petitioner has been falsely implicated in the present case and the FIR has been lodged with an un-explained delay of one and half month; that even the matter was not reported to the police concerned in the form of Rapt; that there is no source of information given in the prosecution story as to how the complainant or his companions came to know about the alleged offences committed by the petitioner and his other co-accused, who has stolen the cattle belonging to the complainant; that there is no direct evidence available to the prosecution to connect the petitioner and other co-accused with the commission of said crime; that there is no extra-judicial confession either by the petitioner or any other co-accused of this case with regard to the commission of offences levelled against them; that the petitioner was arrested on 02.3.2013 though recovery of one cow and one calf has been made on the person of the petitioner but the same is altogether untrue and false being planted; that at the most according to the learned counsel for the petitioner the offence under Section 411 of, PPC if at all attracted, the punishment of which is three years and the same does not fall within the ambit of prohibitory clause of Section 497, Cr.P.C., and there are no exceptional grounds available to the complainant so as to deny the concession of post arrest bail to the petitioner and that all the other co-accused are at large they are not being arrested by the police.
5.  On the other hand, the learned DPG while opposing the bail application has maintained that the petitioner has been nominated in the FIR; that the recovery of one calf and buffalo has been effected from the petitioner, which connects him with the commission of offence as narrated by the prosecution; that the delay is well explained as the complainant of this case alongwith his companions tried to search out the truth; that Section 380 of, PPC is fully attracted in this case and that the petitioner is a hardened criminal and there are nineteen cases lodged against him prior to the present one.
6.  Arguments heard and record perused.
7.  After perusing the record carefully with the assistance of the learned counsel for the petitioner and the learned DPG the case of the petitioner falls within the ambit of Section 497(2) of the, Cr.P.C. being one of further inquiry. Admittedly the case against the petitioner has been lodged with a delay of one and half month which is unexplained and there is no direct evidence available with the complainant against the petitioner. Evidentiary status of the alleged recovery from the petitioner so as to connect him with the commission of Section 380, PPC can be seen and determined by the trial Court after recording of evidence. Mere registration of other criminal cases against the petitioner cannot disentitle him to bail particularly when the prosecution is silent on the question of conviction of the petitioner in the said alleged cases. Reliance in this regard is placed upon "Jamal-ud-Din alias Zubair Kahn v. The State" (2012 SCMR 573) and another similar unreported case "ShoukatAli v. The State" (Crl. Misc. No. 654-B of 2013/BWP). Detention of the petitioner incarceration will not serve any useful purpose because the challan has been submitted in the trial Court but there is yet to be any progress, which accordingly is at initial stage and as such in absence of any exceptional circumstances grant of bail to an accused is a right, which should be given to the accused and refusal is an exception as held by the Hon'ble Supreme Court of Pakistan in "Zafar Iqbal v. Muhammad Anwar and others" (2009 SCMR 1488) "Riaz Jafar Natiq v. Muhammad Nadeem Dar and others" (2011 SCMR 1708) and "Tariq Bashir and 5 others v.The State" (PLD 1995 SC 34).
8.  The epitome of the above discussion, the application for post arrest bail is hereby accepted and the petitioner is admitted to bail till the final decision of the case subject to furnishing bail bonds in the sum of Rs.1,00,000/- (rupees one hundred thousand only) with one surety in the like amount to the satisfaction of the learned trial Court.
9.  Before parting with this order, it is however, clarified that the reasons given in this order are tentative in nature and it will have no effect upon the merits of the case in accordance with law.
(A.S.)   Bail accepted

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