AZIZ SHAH vs THE STATE
This is a criminal bail application filed on behalf of the applicant Aziz Shah seeking post-arrest bail in F.I.R. No. 89 of 2003 registered at Police Station City, Hyderabad for offences under Section 381-A of the Pakistan Penal Code 1860, after his bail plea was dismissed by both the lower courts. The core legal question revolves around whether the applicant is entitled to post-arrest bail when his name is not mentioned in the F.I.R., no overt act is attributed to him, and the only allegation against him is the recovery of the stolen vehicle, which may fall under Section 411 of the Pakistan Penal Code 1860 outside the prohibitory clause of Section 497(1) of the Code of Criminal Procedure 1898. The Sindh High Court held that the applicant made out a case for bail, particularly as the State did not oppose the grant of bail and the case fell outside the prohibitory clause. The court laid down that where an accused is not named in the F.I.R. and the primary allegation is possession of the alleged stolen property without falling within the prohibitory clause, bail should be granted.
- Whether an accused whose name does not appear in the F.I.R. and against whom no overt act is attributed is entitled to post-arrest bail?
- Does an offence under Section 411 of the Pakistan Penal Code 1860 fall within the prohibitory clause of Section 497(1) of the Code of Criminal Procedure 1898?
- What is the effect of non-opposition by the State on a bail application?
- Section 381-A, Pakistan Penal Code 1860
- Section 411, Pakistan Penal Code 1860
- Section 497(1), Code of Criminal Procedure 1898
ORDER
1. ' MUHAMMAD AFZAL SOMRO, J.---By this order I propose to dispose of this Cr. Bail Application bearing No, 65 of 2004, filed on behalf of applicant Aziz Shah in a case bearing F.I.R. No, 89 of 2003 registered with Police Station City, Hyderabad for offences under sections 381-A, P.P. C .
2. ' The bail plea of the applicant was declined by both the Courts below i.e, IVth Civil Judge & Judicial Magistrate, Hyderabad and the learned VIIth Addl. Sessions Judge Hyderabad vide their orders dated 19-12-2003 and 17-1-2004, respectively.
3. ' The prosecution story as unfolded in the F.I.R. Is that on 17-11-2003 at about 9-30 P.M. Complainant Sameer Ashraf set the law into motion by lodging F.I.R. At Police Station City Hyderabad, alleging, inter alia, that on the eventful day he along with his mother Mst. Mumtaz Begum and sister Sunita Ashraf went Rasham Bazar for shopping and parked his car bearing Registration No, ADX-563 in front of MCB. Pakha Peer Chari Branch at. About 4-13 p.m. But when he returned the same was missing. He searched his car by himself but finding no result approached the Police Station City where F.I.R. As above, was registered.
4. ' The investigation followed and in due course the applicant was sent up to stand trial in the Court of learned IVth Civil Judge & Judicial Magistrate Hyderabad.
5. ' I have heard Mr. Aijaz Shaikh, learned Counsel for the applicant and Mr. Mumtaz Alam Laghari, learned counsel for the State.
6. ' It has been contended by the learned counsel appearing on behalf of the applicant that the applicant is innocent and has falsely been implicated in this case. It has further, been contended by the learned counsel for the applicant that the name, features or descriptions of the applicant does not find place in the body of the F.I.R. And applicant only found in possession of the said car and therefore he, at the most can be charged with section 411, P.P.C. Which is punishable only upto three years and such punishment does not come within the prohibitory clause of section 497(1), Cr.P.C. On all these scores, the learned counsel has contended that, the applicant is entitled to bail.
7. He has referred to the cases of Sheikh Bilal v. The State (2000 P.Cr.L.J. 100), Manzoor Ali alias Mumtaz v. The State (2001 P.Cr.L.J. 344) Jabar Shah and another v. The State (2002 PCr.LJ 1045) and Ali Akbar v. Esa Khan and another (2003 YLR 1284) in support of his contentions.
8. ' Learned counsel, appearing on behalf of the State, does not oppose the grant of bail.
9. ' I have gone through the record, considered the arguments, advanced by the learned Counsel for the applicant as well learned counsel appearing on behalf of the State.
10. Admittedly, name of the applicant does not find place in the F.I.R. Neither any descriptions nor features are mentioned therein. Besides the fact that no overt act is A attributed to him, the only allegation against, him that the said car was recovered from his possession.
11. In the circumstances, I am of the view that the applicant, Aziz Shah, has been able to make out a case for bail which, accordingly, is granted to him subject to B his furnishing surety in the sum of Rs,1,00,000 (one lac) and PR bond in the like amount to the satisfaction of the trial Court.
12. ' Cr. B. Application No, 65/2004 stands disposed of.
Cited by 1 case
- Raja YASIR RAFIQUE vs THE STATE and another 2011 P Cr. L J 491