HAJI KHAN vs THE STATE
The applicant sought post-arrest bail in Crime No. 5 of 2005 registered under sections 399 and 402 of the Pakistan Penal Code at Police Station Sanghar. The prosecution alleged that the applicant, armed with a Lathi, was apprehended alongside co-accused with the intention of committing dacoity. The Sessions Judge had previously refused bail, relying on police reports regarding the criminal history of co-accused and holding that police officials were competent witnesses. The core legal question concerned whether the applicant, found carrying only a Lathi at night, made out a case for further inquiry warranting bail, and whether the lower court exercised judicial discretion properly. The Sindh High Court held that the refusal of bail was patently unjustified, noting that the recovery of a mere Lathi did not reasonably connect the applicant to preparations for dacoity, and criticized the lower court for acting subservient to police reports. The Court laid down the principle that judicial officers must apply independent minds, scrutinize police evidence with care and caution, and protect innocent citizens from police high-handedness rather than rubber-stamping police actions. Bail was consequently granted to the applicant.
- Whether a person found with a Lathi in a rural area at night can be reasonably accused of making preparations to commit dacoity under sections 399 and 402 of the Pakistan Penal Code?
- Does the evidence of police officials acting as witnesses require evaluation with due care and extra caution?
- Is a judicial officer justified in refusing bail based on the criminal record of co-accused persons derived from extraneous police reports?
- Section 399, Pakistan Penal Code
- Section 402, Pakistan Penal Code
ORDER
1. ' MUHAMMAD MOOSA K. LEGHARI, J.--- The applicant is seeking bail in Crime No,5 of 2005, Police Station Sanghar registered under sections 399, 402, P.P.C. Registered by A.S.-I. Nabi Bux Lashari on behalf of the State.
2. ' According to the prosecution story, the applicant being armed with a Lathi, was found along with six other persons on Sanghar Bakhoro Road with the intention of committing dacoity and was arrested along with three co-accused by four police personnel.
3. ' Learned Sessions Judge refused the bail holding that though all the prosecution witnesses are police officials, but there was no legal restriction on their becoming witnesses, as they were also good witnesses, as those from public. Further that, the ratio of crime has increased and that co- accused Allah Dino alias Dain Khoso is involved in three criminal cases while co-accused Malook is also involved in six criminal cases.
4. ' It is contended on behalf of the applicant that though there was no police report about the alleged criminal activities of the applicant before the trial Judge, and that he was allegedly having only Lathi in his hand, yet the learned Sessions Judge refused bail to the applicant, which was injudicious on his part.
5. ' Learned State Counsel has not rightly stated no objection to the grant of, bail specifically stating that only a Lathi was recovered from the present applicant and that the order for refusal of bail was illusory.
6. ' The contentions put forward have been Considered.
7. ' No doubt, there is no restriction on the police officials to act as witnesses, but simultaneously they are not altogether immune from the test of credibility. It has been the consistent judicial view that the evidence of the police officials has to be considered with due care and extra caution.
8. ' It is not commendable on the part of a Judicial Officer to act subservient to police, as an impression has been created in the present case. It must be borne in mind quite clearly that the judiciary is neither meant nor supposed to put stamp of approval on all actions taken by the police.
9. Needless to emphasize that a Judicial Officer is under obligation to apply his independent mind on every aspect of the case. It is prime duty of the judiciary to protect the innocent people from the acts of highhandedness let loose by the police. It is astonishingly strange that though only a Lathi is alleged to have been recovered from the possession of the present applicant, yet he was refused bail by taking into consideration the conduct of other accused persons that too on the basis of police report, which was absolutely irrelevant and uncalled for. Such practice is highly undesirable and deprecable.
10. ' The paramount question among others, which needs to be considered would be whether a person, who is found in the rural area, with a Lathi in hand during night time could be accused of the offence of making preparations to commit dacoity. In the case in hand admittedly police did not recover anything else either from the accused or from the place of Wardat. Despite that the Sessions Judge instead of proceeding with the bail application, on the basis of material available on the record, proceeded to call for the report from the police, which prima facie gives an unfortunate impression that he was badly lacking confidence and courage to act independently and decide judiciously. It is expected that in future the cases are decided judiciously, independently and prudently and in accordance with the settled principles of law. The order of refusing bail to the applicant is patently violative of the dictums laid down by the superior Courts.
11. The applicant in the present case is entitled to the grant of bail.
12. ' It is accordingly directed that the applicant be released on bail on his furnishing surety in the sum of Rs,50,000 (Fifty thousand) and P.R. Bond in the like amount, to the satisfaction of the trial Court.