Mst. ISMA BIBI vs THE STATE and another
This matter comes before the Lahore High Court through a criminal petition filed under section 497(5) of the Code of Criminal Procedure 1898, seeking the cancellation of post-arrest bail granted to respondent No.2 by the Additional Sessions Judge, Sahiwal, in a case registered under section 364-A read with section 34 of the Pakistan Penal Code 1860 regarding the abduction of a child. The core legal question is whether the lower court was justified in granting post-arrest bail to an accused named in the FIR for a heinous offense falling within the prohibitory clause, particularly when the abductee had not yet been recovered and the Area Magistrate had disagreed with the police's discharge report. The court held that the trial court acted improperly in granting bail given the heinous nature of the offense, the lack of recovery of the abductee, and the non-binding nature of police opinions on courts. Consequently, the High Court allowed the petition and cancelled the respondent's bail, laying down the principle that police findings of innocence are not binding on courts and bail should not ordinarily be granted in heinous offenses where recovery is pending.
- Whether the ipsi dixit or opinion of innocence by the police is binding on courts while deciding bail applications?
- Can post-arrest bail be granted in a heinous offense falling within the prohibitory clause when the primary recovery of the abductee is yet to be effected?
- Whether a trial court is justified in granting bail when the Area Magistrate has not agreed with the discharge report submitted by the local police?
- Section 497(5), Code of Criminal Procedure 1898
- Section 364-A/34, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
1. ' Through this petition under section 497(5) Cr.P.C. The petitioner has applied for cancellation of bail granted to respondent No.2 vide order dated 12-11-2003 passed by the learned Additional Sessions Judge, Sahiwal in a case F.I.R. No.252 of 2003 dated 2-8-2003 registered under section 364-A/34 P.P.C. At Police Station City Sahiwal.
2. ' It is argued by the learned counsel for the petitioner that the impugned order passed by the learned lower Court by way of granting post-arrest bail to the accused respondent is against law and facts; that the learned lower Court was not justified while granting the relief of post-arrest bail to the accused respondent in the absence of recovery of the alleged abductee, that the learned trial Court has not acted judiciously by way of granting bail to the accused respondent, therefore the impugned order is liable to be set aside.
3. ' On the contrary, the learned State counsel has strongly opposed the petition contending that there was inordinate delay in lodging the case against the respondent and he was also declared innocent during the investigation conducted by the local police, therefore, the learned trial Court was justified while granting the relief of post-arrest bail to the respondent.
4. ' Heard both the parties. Record perused.
5. Record reveals that the accused respondent is named in the F.I.R. With specific allegation of abduction of Waqar Younis and there are statements of Ghulam Nabi and Sher Muhammad P.Ws.
6. Available on the record to connect the accused respondent with the crime complained. Although it has been contended by the learned counsel for the accused respondent that he has been declared innocent during the investigation and discharge report has been prepared for cancellation of case against him, yet the fact remains, firstly the Area Magistrate has not agreed with the discharge report submitted by the local police, secondly, ipsi dixit of the police is not binding on the Courts. More over the offence complained is of heinous nature and the recovery of the abductee is still to be effected therefore, in the absence of the recovery, in my view, the learned trial Court was not justified to enlarge the accused respondent on bail especially when the offence complained is of heinous nature and falls with the prohibitory clause of section 497 Cr.P.C.
7. Resultantly the instant petition is allowed, the impugned. Order dated 12-11-2003 passed by the learned trial Court whereby the accused I respondent was granted post-arrest bail is hereby set aside and the post arrest bail of the accused respondent is cancelled.