MUHAMMAD ASHFAQ vs THE STATE
This is a petition for post-arrest bail arising from F.I.R. No. 310 registered under sections 448, 380, 148, and 149 of the Pakistan Penal Code 1860 at Police Station Kotwali, District Faisalabad, concerning allegations of house trespass, theft, and forcible dispossession. The core legal question involves determining whether the petitioner is entitled to post-arrest bail given the specific role attributed, the prima facie findings of guilt by local authorities, and the lack of proof regarding lawful possession. The Lahore High Court dismissed the bail petition, holding that the petitioner was nominated with a specific role, was prima facie connected to the forcible dispossession and amalgamation of the complainant's shop, and failed to establish a lawful tenancy or possession. The key principle laid down is that where an accused is specifically nominated for forcible dispossession and fails to substantiate a claim of lawful possession or tenancy, bail may be refused notwithstanding that the offences do not strictly fall within the prohibitory clause.
- Whether an accused nominated with a specific role for forcible dispossession and theft is entitled to post-arrest bail?
- Does the failure to substantiate lawful tenancy or possession disentitle an accused from relief in a bail application?
- Can bail be refused in cases not strictly falling within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898 when prima facie guilt is established?
- Section 448, Pakistan Penal Code 1860
- Section 380, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
' TANVIR BASHIR ANSARI, J.---This is a petition for bail after arrest of the petitioner in case F.I.R. No.310, dated 29-11-2004 registered under sections 448/ 380/148/149, P.P.C. At Police Station, Kotwali District, Faisalabad.
2. According to the prosecution case, the petitioner armed with .30 bore pistol along with several co-accused trespassed into the shop/cabin of Abdul Ghafoor complainant and forcibly dispossessed him from the same and also took away goods worth Rs.25,000 as mentioned in the F.I.R. Thereafter the shop/cabin was amalgamated with the other shop of Dr. Dawood co-accused.
3. Learned counsel for the petitioner contends that the allegation contained in the F.I.R. Is false as the petitioner is a bona fide tenant in another shop/cabin belonging to. Dr. Dawood co-accused. It is.Urged that the F.I.R. Has been lodged with a delay of 3 years which has gone unexplained on the record. It is further contended that the offence does not fall within the prohibitory clause of section 497, Cr.P.C. And that the petitioner is entitled to bail.
4. On the other hand, learned counsel for the State as well as the learned counsel for the complainant has opposed the bail on the ground that admittedly the complainant is the owner of the shop cabin in question. He was forcibly dispossessed from the same and that in the report of DCO and DSP City, the petitioner and the other co-accused have been found prima facie guilty of the offence. It is further submitted that it was with great effort that the complainant was able to register the F.I.R. Despite various attempts. The local police did not register the F.I.R. It is also submitted that apprehending foulplay the complainant had filed an application before the police even before the occurrence that the accused wanted to interfere in the lawful possession of the complainant.
5. Arguments have been heard and record perused.
6. It is not denied that the complainant is the owner of the shop in question. It is also not the case of the petitioner that the complainant is still in possession of the same. The petitioner is nominated in the F.I.R. With a specific role. The shop of the petitioner according to the prosecution case has been amalgamated with the other shop belonging to the co-accused Dr. Dawood. The petitioner claims himself to be a tenant under the said Dr. Dawood but has not prima facie shown the extent of his lawful tenancy or the extent of his present possession.
7. In view of the above, the petitioner has not been able to make out a case for the grant of bail.
This petition is dismissed.