NADIR and others vs THE STATE
This matter arises from a criminal petition seeking post-arrest bail in respect of offences under sections 440 and 34 of the Pakistan Penal Code 1860, registered vide F.I.R. No.156 of 2007 at Police Station Phalia, District Mandi Bahauddin. The core legal question concerns whether the petitioners are entitled to post-arrest bail where the alleged offence falls outside the prohibitory clause, no specific date or time of occurrence is mentioned in the F.I.R., no incriminating articles were recovered, and previous criminal cases have not resulted in any conviction. The Lahore High Court accepted the application and held that since the offence falls outside the prohibitory clause and a case for further inquiry has been made out, grant of bail is the rule and refusal is the exception. The key principle laid down is that in offences falling outside the prohibitory clause, pre-trial incarceration is not warranted where the accused are no longer required for investigation and no conviction exists in past cases.
- Is bail to be granted as a rule in offences falling outside the prohibitory clause?
- Does the mere registration and pendency of previous criminal cases constitute a sufficient ground for the refusal of bail?
- Whether the absence of a date or time of occurrence in the F.I.R. makes out a case for further inquiry?
- Section 440, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
' HASNAT AHMAD KHAN, J.---Petitioners seek post-arrest bail in case F.I.R. No.156 of 2007, dated 23- 4-2007 registered at Police Station, Phalia, District Mandi Bahauddin in respect of offences under sections 440/34, P.P.C.
2. Precise allegation against the petitioners is that besides damaging the crops of the complainant the petitioners had stealthily harvested crops of sugar-cane and wheat.
3. In support of this petition learned counsel for the petitioners has contended that no date or time of occurrence has been given in the F.I.R. That the offence allegedly, committed by the complainant does not fall within the prohibitory clause; that there is a dispute of land between the parties, who are closely related inter se and the case had been registered against the petitioners due to the mala fides of the complainant who has already got registered similar cases against the petitioners; that Nadir petitioner is an old man of the age of 70 years and that the case of further inquiry has been made out in favour of the petitioners.
3A. Conversely, learned Deputy Prosecutor-General has opposed the bail application tooth and nail by submitting that the petitioners are duly named in the F.I.R. And they are hardened and desperate criminals who have already been involved in so many cases.
4. Confronted with this objection learned counsel for the petitioner has contended that mere registration and pendency of criminal cases is no ground for refusal of bail. In this regard he has placed reliance upon a case Khalid Taqi v. State (1999 PCr.LJ 271).
5. On Court's query learned Deputy Prosecutor General Punjab has candidly submitted that in none of the previous cases registered against the petitioners they stand convicted.
6. After hearing the arguments of the parties I have straightaway noticed that no date or time of occurrence has been mentioned in the F.I.R. Similarly it appears that the occurrence is an unwitnessed one as nobody has been cited in the F.I.R. As witness of said crime. Admittedly the offence allegedly committed by the petitioner does not fall within the prohibitory clause. It is also admitted position that petitioners have never been convicted in earlier cases registered against them. The police record reveals that Nadir petitioner is an old man of 60/65 years. Police officer present in Court has candidly admitted that during the investigation no incriminating articles was recovered at the instance of the petitioners.
7. All the facts mentioned above reveal that a case of further inquiry has been made out in favour of the petitioner. Besides that offence allegedly committed by the petitioners does not fall within the prohibitory clause. Challan has already been submitted before the Court. The petitioners are no longer required for investigation purposes. No useful purpose would be served by detaining the petitioners any more in the jail. It is established law that in the cases falling outside the prohibitory clause grant of bail is a rule while refusal thereof, is an exception. In this regard reference is made to a case of Tariq Bashir and 5 others v. The State (PLD 1995 SC 34). Consequently this application is accepted and the petitioners are allowed bail subject to their furnishing bail bonds in the sum of Rs.50,000 (rupees fifty thousand) each with one surety each in the like amount to the satisfaction of the trial Court.