SHAFIQ AHMED vs THE STATE
This matter arises from a bail application filed by the applicant Shafiq Ahmed, who is facing trial under Section 392 of the Pakistan Penal Code 1860 in connection with F.I.R. No. 1096 of 2001 registered at Police Station ACL. The core legal question is whether the applicant is entitled to post-arrest bail given the recovery of the robbed motorcycle and a T.T. pistol from his possession, along with his identification by the complainant, despite the F.I.R. being registered after the alleged recovery. The Sindh High Court held that the offence falls within the prohibitory clause of Section 497(1) of the Code of Criminal Procedure 1898 and that the case does not attract Section 497(2) for further inquiry, thereby declining the bail. The key principle laid down is that where incriminating articles like the robbed property and a weapon are recovered from the accused and he is successfully identified in an identification test, bail will be refused for offences falling under the prohibitory clause, subject to expediting the examination of material witnesses.
- Whether post-arrest bail can be granted when the robbed property and a weapon are recovered from the accused's possession?
- Does an offence under Section 392 of the Pakistan Penal Code 1860 fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- Is an accused entitled to bail merely because the F.I.R. was registered after the alleged recovery of the robbed motorcycle?
- Section 392, Pakistan Penal Code 1860
- Section 497(1), Code of Criminal Procedure 1898
- Section 497(2), Code of Criminal Procedure 1898
ORDER
1. The applicant is facing trial in the Court of IIIrd Additional Sessions Judge, Karachi-East for an offence under section 392, P.P.C. arising out of F.I.R. No,1096 of 2001 of P.S. ACL.
2. Brief facts of prosecution case are that on 8-8-2001, complainant. Adil Hussain Siddiqui was going on motorcycle and when reached at K.F.C. Fast Food near Tariq Road Liberty Chowk, two youngsters armed with T.T. Pistols came there and asked him to hand over the motorcycle to them.
3. The complainant gave certain descriptions of culprits in the F.I.R.
4. On 21st August, 2001, the accused was arrested ,and robbed motorcycle and a T.T. Pistol was recovered from his possession by the police.
5. After registration of F.I.R. the police up investigation and submitted the challan.
6. It is contended by the learned counsel for applicant that accused is in custody since 21-8-2001. The F.I.R. was registered after the alleged recovery was made. It is submitted that the case has not yet proceeded and applicant has been falsely implicated in this case. Hence he is entitled for bail.
7. Mr. Habibur Rashid learned counsel for State has opposed the bail plea of accused.
8. Perusal of record shows that motorcycle bearing Registration No,KAF-1225 make Honda C.D. 70 was robbed from complainant by two young boys on pistol point. Although, the F.I.R. of this case was registered after recovery of motorcycle from the possession of present applicant On 21-8-2001, but the complainant had no enmity with the accused to involve him in false case. Not only the robbed motorcycle was recovered from his possession tut. T.T. Pistol was also taken, from his possession.
9. Subsequently identification test was held and the present applicant was rightly picked up by the complainant. No doubt the case has not yet proceeded but case diaries have not been produced by the applicant. The offence with which accused is charged is covered by prohibitory clause of section 497(1), Cr.P.C. The case of applicant does not come under the scope of section 497(2), Cr.P.C. The bail is. declined.
10. However, the trial Court is directed to examine the Mashirs of recovery and complainant expeditiously and the defence would be at liberty to repeat its bail application after the aforesaid witnesses were examined.
Cited by 1 case
- MUHAMMAD NADEEM vs THE STATE and another 2004 YLR 3315