Sadaf Nawaz vs The State
The petitioner, a foot constable, sought post-arrest bail in connection with FIR No. 370/08, involving charges under Sections 223 and 224 of the Pakistan Penal Code 1860 and Section 155-C of the Police Order 2002. The petitioner was accused of negligence or collusion resulting in the escape of an under-trial prisoner from police custody. The core legal question was whether the petitioner was entitled to bail as a matter of right given that the alleged offences did not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898. The Court dismissed the bail petition, holding that the mere fact that an offence does not fall within the prohibitory clause does not automatically entitle an accused to bail as a matter of right. The Court emphasized that the nature of the offence—the escape of a prisoner accused of a heinous crime—and the failure to recapture the fugitive were significant factors. The Court directed the trial court to conclude the proceedings by a specified date.
- Does an offence falling outside the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898 entitle an accused to bail as a matter of right?
- Is the escape of an under-trial prisoner from police custody considered a factor weighing against the grant of bail, even if the specific statutory provisions are not within the prohibitory clause?
- Section 223, Pakistan Penal Code 1860
- Section 224, Pakistan Penal Code 1860
- Section 155-C, Police Order 2002
- Section 497(1), Code of Criminal Procedure 1898
- Section 302, Pakistan Penal Code 1860
- Section 392, Pakistan Penal Code 1860
ORDER M.A. ZAFAR, J.- Sadaf Nawaz petitioner seeks post arrest bail in case FIR No. 370/08 dated 28.6.2008 for the offence u/s 223, 224, PPC read with Section 155-C, Police Order, 2002 registered with police station,. Civil Lines District Gujranwala at the instance of Abaid Ullah Khan Inspector/Incharge Saddar Judicial, District Courts, Gujranwala.
2. According to the allegation leveled in the FIR one Imran @ Ihsan an under trial prisoner was to be produced in the Court of learned Judicial Magistrate, Gujranwala and the petitioner along with his co-accused Altaf Hussain was handed over the custody of said under trial prisoner for producing him in the Court and said under trial prisoner was duly handcuffed. After attending the Court while coming towards Judicial lock-up the said Imran @ Ihsan escaped from the custody of present petitioner and his co-accused Altaf Hussain after removing handcuffs, it is also in the FIR that petitioner and his co-accused for their personal gain have managed in escape of said Imran @ Ihsan without handcuffs.
3. Learned counsel for the petitioner submits that Sections 223 & 224, PPC are bailable whereas Section 155- C, Police Order, 2002 does not fall within the prohibitory clause of Section 497 (1), Cr.P.C, and maximum punishable uptill three years and thus the same will deemed to be bailable.
Reliance is placed on NLR 1999 Criminal page 1 (Anjum Sheraz v. The State) and moreover, the same applies only to the officers. He further submits that petitioner is in custody since 28.6.2008.
4. On the other hand, learned D.P.G, has opposed the grant of bail on the ground that petitioner has committed a heinous offence and he is responsible for escaping Imran @ Ihsan an under trial prisoner from police custody.
5. After hearing learned counsel for the parties and perusing the record I find that petitioner a foot constable armed with rifle and his co-accused were deputed to produce Imran @ Ihsan an under trial prisoner, who was nominated accused in case FIR No. 116/08 u/s. 302/392, PPC registered with P.S Khiali, Gujranwala, before learned Area Magistrate, escaped from their custody leaving handcuffs with them but till today said Imran ji @ Ihsan an under trial prisoner has not been arrested. Under second schedule of Criminal Procedure Code, offences against other laws punishable with imprisonment for three years or exceeding three years are non-bailable. The mere fact that the offence with which petitioner has been charged does not fall within the prohibitory clause would not make the petitioner entitled to bail as a matter of right. Reliance is placed on cases titled as Imtiaz Ahmad and another v. The State (PLD 1997 S.C. 545). .Muhammad Afzal and another v. The State (1997 SCM R 278) and Muhammad Siddique v. Imtiaz Begum and 2 others (2002 SCM R 442).
6. For the foregoing reasons, this petition is dismissed with the direction to the learned Trial Court to conclude the trial in this case on or before 30th November 2008. Compliance report be submitted through Deputy Registrar (Judl) of this Court.