HABIB AHMAD vs THE STATE and another
This criminal miscellaneous application was filed by Habib Ahmad seeking post-arrest bail in case F.I.R. No. 1238 registered under sections 419, 420, 468, and 471 of the Pakistan Penal Code at Police Station Mingora Swat, after his previous bail applications were dismissed by the lower courts and this Court. The core legal question was whether the petitioner was entitled to post-arrest bail given that the vehicle in question had now been recovered and handed over to the complainant, investigation was complete, challan submitted, and the offenses did not fall within the prohibitory clause of section 497 of the Code of Criminal Procedure. The Peshawar High Court held that since the investigation was complete, the petitioner's physical custody was no longer required, the vehicle had been recovered, and the offenses charged were not hit by the prohibitory embargo of section 497, the petitioner made out a case for bail. The Court laid down the principle that where investigation is complete, custody is unnecessary, and the offenses do not fall within the prohibitory clause, bail should ordinarily be granted.
- Whether an accused is entitled to post-arrest bail when the offenses charged do not fall within the prohibitory clause of section 497 of the Code of Criminal Procedure?
- Does the recovery of the disputed vehicle and the completion of investigation justify the grant of post-arrest bail in cheating and forgery cases?
- Section 419, Pakistan Penal Code 1860
- Section 420, Pakistan Penal Code 1860
- Section 468, Pakistan Penal Code 1860
- Section 471, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
' nMUHAMMAD ALAM KHAN, J.---Having failed to get the concession of bail from the lower Courts i.e, learned Illaqa Qazi/Judicial Magistrate and Additional Sessions Judge/Izafi Zilla QaziIII Swat, vide orders, dated 15-4-2008 and 10-5-2008 respectively in case F.I.R. No,1238, dated 8-7-2007 under sections 419-420-468-471, P.P.C. Of Police Station Mingora Swat and also by this Court vide Criminal Misc: No,912 of 2007 decided on 22-10-2007, Habib Ahmad petitioner has once again come to this Court seeking his release on bail.
2. Facts of the case as gleaned from the F.I.R. Are that the petitioner was charged for the above offences on the written applications of complainant Arif son of Shaukat resident of Landi Kas Mingora, Swat, which was submitted to the D.I.-G. Malakand Region Saidu Sharif Swat. The allegations therein, are that the complainant have got business of rent 'A' Car at Makan Bagh and he is renting the cars. On 9-3-2007, the petitioner Habib Ahmad came to the complainant and requested for renting him a car which bargain was struck and consequently his brother Jamil Ahmad handed over the Motorcar No,8176-Swat. On receiving the car, both the accused further rented out the car to Fazal Hadi resident of Delai, Bara Bandai on rent of Rs,2000. Now the car is not being returned by them on the pretext that Habib Ahmad had secured some loan from Fazal Hadi accused and Habib Ahmad had.Handed over the car to him in adjustment of the loan.
3. An enquiry was conducted by the local police, in which Fazal Hadi accused was exonerated at case was registered against Habib Ahmad and Jamil Ahmad son of Sher Muhammad.
4. Mr. Muzamil Khan, Advocate, learned counsel for the petitioner submitted that although the bail prayer of the petitioner was rejected by this Court vide, dated 22-10-2007 mainly on the ground that the vehicle in question had not been returned by the petitioner to the complainant inspite of the repeated chances given to him by the lower Court and on some occasions an undertaking was furnished by one Saeed Ahmad brother of petitioner but the same was not complied with.
Elaborating his arguments, he submitted that after the rejection of the bail application, the custody of the said motorcar was handed over to the complainant by the learned Sessions Judge, vide order, dated 25-3-2008. It was also argued that none of the offences with which the petitioner is charged comes within the embargo laid down in section 497, Cr.P.C. And handing over of the car to the complainant was in compliance of the order of this Court.
5. Mr. Ikramullah Khan A.A-G. And Mr. Yousaf Khan Yousafzai, Advocate, learned counsel for the respondent submitted that petitioner along with his brother has been directly charged by the complainant and handing over the vehicle to the complainant was rather an admission of the guilt of the petitioner and thus he is not entitled to the concession of bail.
6. I have given my anxious consideration to the facts of the case and have gone through the record of the case. The motorcar has been handed over to the complainant and the petitioner is behind the bars since 10-7-2007. The investigation in this case is complete. Complete challan has been put in Court and the presence of the petitioner is no longer required for investigation. None of the offences with which the accused-petitioner is charged is hit by the embargo laid down in section 497, Cr.P.C. And thus the petitioner is entitled to the concession of bail as laid down in the case of Badrey and 3 others v. The State and another 2000, PCr.LJ 1914.
7. In view of the facts and circumstances of the case narrated above I accept the instant bail application and admitted the petitioner to bail, provided he furnishes bail bonds in the sum of Rs,2,00,000 (Two hundred thousands) with two sureties each to the satisfaction of Illaqa Judicial/Duty Magistrate, Mingora (Swat), who will ensure that the sureties are local, reliable and men of means.
8. Above are the reasons for my short order dated 25-7-2008.