ALLAH RAKHA alias SHABAZ alias BUTT vs STATE
This criminal matter arises from a post-arrest bail petition filed by Allah Rakha alias Shahbaz alias Butt in connection with FIR No. 47 of 2008 registered under Sections 381-A and 411 of the Pakistan Penal Code 1860 at Police Station Civil Lines, Lahore. The core legal question concerns whether the petitioner was entitled to post-arrest bail given that the stolen motorcycle was recovered upon his disclosure following his arrest in a separate case, and whether the offences fell within the prohibitory clause. The Lahore High Court dismissed the bail petition, holding that the nature of the offence—involving the theft of a traffic warden's motorcycle reflecting the accused's desperation—disentitled him to discretionary relief, and that Section 103 of the Code of Criminal Procedure 1898 was inapplicable to the discovery made admissible under Article 40 of the Qanun-e-Shahadat Order 1984. The key principle laid down is that bail may be refused as a matter of discretion where the conduct and desperation shown in committing theft of property belonging to law enforcement officials outweighs the non-prohibitory nature of the offence.
- Whether post-arrest bail should be granted when the accused is linked to the theft through a recovery resulting from a disclosure statement?
- Does Section 103 of the Code of Criminal Procedure 1898 apply to the recovery of a motorcycle discovered through the accused's own leading statement?
- Is a recovery made pursuant to an accused's disclosure admissible under Article 40 of the Qanun-e-Shahadat Order 1984 notwithstanding procedural objections?
- Can bail be refused as a matter of judicial discretion even if the offences charged do not strictly fall within the prohibitory clause?
- Section 381-A, Pakistan Penal Code 1860
- Section 411, Pakistan Penal Code 1860
- Section 380, Pakistan Penal Code 1860
- Section 103, Code of Criminal Procedure 1898
- Article 40, Qanun-e-Shahadat Order 1984
ORDER
Allah Rakha alias Shahbaz alias Butt petitioner seeks bail after arrest in case FIR No, 47/08 dated 12.1.2008 for offences under Sections 381-A/411 PPC registered at Police Station Civil Lines, Lahore.
2. The ground taken for bail is that the petitioner was not nominated in the FIR; that even if the recovery is effected, case under Section 411 would be made out and that at all events the offences in which the petitioner has been indicted do not fall within the prohibitory clause. It was claimed that in such cases, bail is granted as a rule and rejection thereof is an exception. Reliance was placed on 2008 P.Cr. LJ 611.
3. The learned Deputy Prosecutor General for the state opposed the bail.
4. After hearing the learned counsel for the petitioner and DPG for the state, I quite see that the recovery of the stolen motorcycle belonging to traffic warden, Sector Mall-II, Lahore was effected from the petitioner who was arrested in some other case (FIR 625/08) for offence under Section 380 PPC. In the course of investigation, the petitioner disclosed and led to the recovery of stolen motorcycle belonging to a police warden. The nature of the offence forming the subject matter of both the FIRs, as aforementioned, is almost the same. The act of the petitioner is stealing away the motorcycle belonging to a police official right from Regal Chowk Lahore, cannot be taken lightly. It reflects his desperation. The argument that there was violation of Section 103 Cr.P.C. has no force at all, because in case of recover of motorcycle, Section 103 Cr.P.C. was hardly applicable, the more so when the accused had himself led to discovery of a fact. In such a situation, the recovery made would be admissible under Article 40 of the Qanun-e-Shahadat Order, 1984. The argument in that context was, therefore, nothing but a subterfuge. Considering the nature of offence in which the petitioner is involved, I am not inclined to exercise my direction in his favour. His application is