SAEEDULLAH and another vs THE STATE and another
This matter arises from a post-arrest bail application filed by accused-petitioners Saeedullah and Zaman in connection with FIR No. 31/2008 registered under Sections 457, 380, and subsequently added Section 411 of the Pakistan Penal Code 1860, after their bail applications were rejected by lower courts. The complainant reported the theft of his cattle from his house, without initially naming any accused. During the investigation, the petitioners were arrested and booked. The core legal question was whether the petitioners were entitled to bail where the offence made out against them falls outside the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898. The Peshawar High Court accepted the bail application and ordered the release of the petitioners. The Court held that, prima facie, the petitioners could at most be charged under Section 411 PPC, which is a bailable offence not falling within the prohibitory clause. The Court laid down the principle that the maximum statutory sentence should not be the sole criteria for withholding bail if the available record suggests the maximum punishment is unlikely to be awarded.
- Whether an accused charged with an offence under Section 411 PPC is entitled to post-arrest bail as a matter of right or discretion when the offence does not fall within the prohibitory clause of Section 497 Cr.P.C.?
- Should the court strictly consider the maximum statutory sentence prescribed for an offence when deciding a post-arrest bail application?
- Can bail be granted where the tentative assessment of the material on record shows that the case requires further inquiry?
- Section 457, Pakistan Penal Code 1860
- Section 380, Pakistan Penal Code 1860
- Section 411, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
' MUHAMMAD ALAM KHAN, J.---This is an application for bail filed by the accused/petitioners Saeedullah and Zaman, sons of Zakim Khan in case F.I.R. No.31, dated 27-2-2008 of Police Station Paroa, District D.I. Khan, initially registered under sections 457/380, P.P.C. With subsequently added section 411, P.P.C., as their efforts for the same relief have been proved abortive before the learned lower Courts vide orders, dated 7-3-2008 and 13-3-2008 respectively.
2. According to the' F.I.R. Lodged by the complainant Hafeezullah Khan on 27-2-2008 at 1110 hours, on the last night he along with his children were asleep in the house while the cattle were tied in the cattle room. When he woke up in the evening, he saw the door of the cattle room opened and on entering there found missing a buffalo of black colour and oxe of a white colour, both valuing ninety thousands, but none was charged for the offence. However, subsequently during the investigation of the case, the accused/petitioners were booked for the offence who after their arrest applied for bail but could not succeed in the lower fora and hence this petition.
3. I have heard learned counsel for the parties and examined the available record.
4. From perusal of the available record it reveals that prima facie, the accused/petitioners at the most, could be booked for an offence under section 411, P.P.C., the punishment wherefor provided under the law is not hit by the prohibition contained under section 497, Cr.P.C. And is bailable.
Similarly, it is not the principle of law that the maximum sentence provided for an offence should be kept in mind while granting bail to the accused if the Court on the data discernable from the record comes to the conclusion that no maximum punishment could be awarded to the accused/petitioner, the concession of bail could be extended to him in the given circumstances.
Thus while tentatively assessing the case of the accused/petitioners, it goes out of the embargo contained under section 497, Cr.P.C. And is held to be of further inquiry.
5. Consequently, the application is accepted and the accused/petitioners are directed to be released on bail provided they furnish bail bonds in the sum of Rs.1,00,000 (Rs. One lac) with two sureties each in the like amount to the satisfaction of Ilaqa/Judicial Magistrate, who shall ensure that the sureties are local, reliable and men of means. Above are the reasons for my short order of even date.