HAZRAT WALI vs STATE and another
This matter arises from a bail application filed by the petitioner Hazrat Wali after his previous bail pleas were dismissed by the lower judicial forums. The core legal question concerns whether the petitioner is entitled to post-arrest bail where the offences charged do not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898 and the case involves further inquiry. The Peshawar High Court accepted the bail application and held that offences under Section 381-A and Section 411 of the Pakistan Penal Code 1860 carry maximum sentences of less than ten years, thus falling outside the prohibitory clause of Section 497 Cr.P.C. The Court laid down the principle that in cases not falling within the prohibitory clause, the grant of bail is a rule and its refusal is an exception, and bail should be granted when the case calls for further inquiry into the guilt of the accused.
- Whether offences under Section 381-A and Section 411 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 post-arrest bail as a rule when the alleged offence does not fall within the prohibitory clause?
- Does a delay in charging the accused by the complainant warrant further inquiry into the guilt of the accused for the purpose of bail?
- Section 406, Pakistan Penal Code 1860
- Section 381-A, Pakistan Penal Code 1860
- Section 411, Pakistan Penal Code 1860
- Section 164, Code of Criminal Procedure 1898
- Section 497, Code of Criminal Procedure 1898
Muhammad Alam Khan, J.--Hazrat Wali petitioner has filed the instant application for bail as his request for bail has been refused by Judicial Magistrate No, 7 Peshawar as well as Muhammad Asim Imam, Additional Sessions Judge-III, Peshawar.
2. Arbab Abdul Ghafoor, Advocate counsel for the petitioner has submitted written arguments, which were perused. Mr. Obaidullah Anwar, Additional Advocate General was heard at length on behalf of the State.
3. Brief facts of the case are that Haji Muhammad Taqi son of Haji Gul Muhammad, resident of Haji Camp City Town Peshawar lodged an FIR in Police Station Chamkani, District Peshawar on 17.6.2007 at 1100 hours to the effect that he is the owner of Trailer No, LSB-9486 and one Khan Muhammad son of Haji Yaseen is a joint owner in this trailer as they had purchased the same on partnership basis. The trailer is being plied by Khan Muhammad driver. On 15.6.2007 the driver had parked the trailer at 12.00 noon at Admore Petrol Pump situated on G.T. road Peshawar. The next morning the driver informed the complainant that the trailer is missing and the complainant charged Khan Muhammad the co-partner for the commission of the offence and initially the case was registered under Section 406 PPC for criminal breach of trust. Subsequently on 25.6.2007 the complainant recorded his statement under Section 164 Cr.P.C. and charged the accused for the commission of the offence and consequently the offence was changed from Section 406 to Section 381-A/411 PPC. 3-A. The accused-petitioner submitted application to the Judicial Magistrate, Peshawar for his release on bail, which was rejected on 3.10.2007. Then he moved an application before Additional Sessions Judge-III, Peshawar, which too was rejected on 1.11.2007. Now the petitioner has moved the present application for his release on bail.
4. It is apparent from the record that the complainant has initially charged a co-partner for the commission of the offence and after ten days has changed the story and charged the present accused-petitioner.
5. Without touching the merits of the case so that it may not prejudice the case of either party, offence under Section 381-A PPC carries a maximum sentence of 7 years while under Section 411 PPC maximum sentence is three years. Although Section 411 has been included in the FIR subsequently and it finds mention in the application to the learned Additional Sessions Judge, but both the sections of law involve a sentence of less than ten years, which does not come within the prohibitory clause of Section 497 Cr.P.C. and further more the case is of further inquiry into the guilt of accused petitioner. The accused-petitioner has made out a case for bail because in such like cases the grant of bail is a rule and its refusal is an exception.
7. In view of the facts and circumstances narrated above, I accept this bail application and consequently Hazrat Wall is released on bail in the sum of Rs, 50,000/- with two sureties each in the like amount to the satisfaction of Maga Judicial Magistrate, who shall see that the sureties are local and men of means.