SHER ALAM vs THE STATE
This matter arises from a petition filed by Sher Alam seeking post-arrest bail in a case registered under sections 381-A and 411 of the Pakistan Penal Code 1860, relating to the theft of a tubewell transformer from a government scheme where the petitioner was employed as a watchman. The core legal question was whether the petitioner was entitled to the concession of post-arrest bail given the nature of the alleged offence and his position as a custodian of the property. The Peshawar High Court held that since the offence carries a maximum sentence of seven years and does not fall within the prohibitive clause of section 497 of the Code of Criminal Procedure 1898, the grant of bail is the general rule and its refusal is the exception. The court laid down the principle that in offences carrying sentences below the statutory threshold of ten years, imprisonment should not be used as a pre-trial punishment, as pre-trial detention cannot be compensated in the event of an ultimate acquittal, and accordingly accepted the bail application.
- Whether bail should be granted when the offence charged carries a maximum sentence of seven years and falls outside the prohibitive clause of section 497 of the Code of Criminal Procedure 1898?
- Does the failure of a watchman to safeguard government property disentitle him to the concession of post-arrest bail?
- Is pre-trial incarceration justified for offences not punishable with death, imprisonment for life, or a term of ten years?
- Section 381-A, Pakistan Penal Code 1860
- Section 411, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
' MUHAMMAD ALAM KHAN, J.---Sher Alam son of Mir Afzal, caste Dheli Khel, resident of Wanda Jandar, Police Station Yarik, Tehsil and District D.I. Khan, has filed this petition for his post-arrest bail as he is charged under sections 381-A/411, P.P.C., vide F.I.R. No.165, dated 5-11-2007, registered at police station Yarik, D.I. Khan.
2. Briefly narrated the facts of the case are that Sher Alam petitioner lodged a report on 8-8-2007 to the effect that he is posted as Watchman on Wanda Jandar Scheme Tubewell for the last 2-1/2 years. It was further alleged in the F.I.R. That he also works as Operator of the Tubewell. It was further disclosed that Abdul Rahman son of Shah Behram has been posted as Operator on this Tubewell but he is not performing his duties. That on 4-8-2007 in the night he was sleeping in the Tubewell house. In the meantime, he found that the transformer of the tubewell was missing. He saw the footprints on the spot and reported the matter to the Public Health Engineering Department and also the WAPDA office at Pezu. He was also searching the transformer but could not find and thus he charged Sher Din, Allauddin, sons of Sharab Din, Abdul Rashid son of Ayaz Khan, residents of Jandar, on the basis of suspicion. It was also alleged in the F.I.R. That as Abdul Rahman has been posted as Operator on this tubewell but in fact as the land had been donated by his nephews Amin Jan and Dil Jan sons of Ghanam Jan to the Public Health Engineering Department and they asserted their right of service so because of this the transformer might have been stolen by Abdul Rahman son of Shah Behram along with his accomplice above mentioned.
3. This report was reduced into writing vide daily diary No.2, dated 8-8-2007 which was enquired into and after enquiry it was found that in fact the complainant Sher Alam and one Said Alam sons of Mir Afzal has taken away the transformer and on 5-11-2007 the contents of the daily diary were incorporated in the F.I.R. Above mentioned. Sher Alam son of Mir Afzal and his brother Said Alam son of Mir Afzal were arrested by the local police in this case.
4. Both of the petitioners submitted application to the Illaqa/ Judicial Magistrate for their post arrest bail and the learned Judicial Magistrate vide order, dated 5-12-2007 dismissed their bail application. Consequently, they submitted bail application before the learned Sessions Judge D.1.
Khan which came up for hearing before the learned Additional Sessions Judge-VI D.I. Khan, who after hearing the parties ' and considering the data available on record granted bail to Said Alam accused while the bail application of the present accused/petitioner Sher Alam was dismissed.
Hence this application.
5. It was submitted on behalf of the petitioner by his counsel Allah Nawaz Advocate that the petitioner has not been charged for the commission of the offence, no recovery has been effected from his possession and the charge against him is based on malice.
6. Mr. Tariq Aziz Baluch, Deputy Advocate General, however, submitted that the accused/petitioner was a watchman and this was his duty to look after and keep the Government property in safe custody, ' thus he has betrayed the trust reposed in him by the department and so he was not entitled to the concession of bail.
7. I have given my thoughtful consideration to the facts of the case and have gone through the record of the case. Without commenting on the merits of the case, suffice it to say that the offence with which the accused/petitioner is charged carries a maximum sentence of seven years which is not hit by the embargo contained in section 497, Cr.P.C. In offence which carries a sentence shorter than sentence of ten years, life imprisonment and death, the grant of bail to an accused/petitioner is a rule and the refusal thereof is an exception to that rule. The cardinal principle of jurisprudence is that if the offence is proved, then the convict serves the sentence awarded, but in case of ultimate acquittal, keeping an accused person behind the bars cannot be compensated.
8. In view of the above situation, the bail application of the accused/petitioner is accepted. He is ordered to be released on bail provided he furnishes bail bond in the sum of Rs.1,00,000 (Rs. One lac) with two sureties each in the like amount, to the satisfaction of Illaqa/ Judicial Magistrate.