MUHAMMAD YOUSUF and another vs THE STATE
The applicants sought post-arrest bail in Crime No. 66 of 2009 registered under sections 392/34 of the Pakistan Penal Code 1860 at Police Station Kharadar, Sindh, after their initial bail plea was rejected by the trial court. The core legal question was whether the offense against the applicants fell under section 392 or could be reduced to section 411 of the Pakistan Penal Code 1860, thereby attracting the prohibitory clause of section 497 of the Code of Criminal Procedure 1898 and warranting further inquiry. The Sindh High Court held that since the robbed motorcycle was recovered from their possession and they were not subjected to an identification parade by the complainant, the case at best fell within the purview of section 411 of the Pakistan Penal Code 1860. The court laid down the principle that the lack of an identification parade and the nature of recovery pointing toward a lesser offense can bring a case within the scope of further inquiry under section 497(2) of the Code of Criminal Procedure 1898, justifying the grant of post-arrest bail.
- Whether the recovery of a robbed motorcycle without an identification parade brings the case under section 411 of the Pakistan Penal Code 1860 instead of section 392?
- Does a case falling under section 411 of the Pakistan Penal Code 1860 warrant further inquiry under section 497(2) of the Code of Criminal Procedure 1898 for the grant of bail?
- Can post-arrest bail be granted when the offense does not fall within the prohibitory clause of section 497 of the Code of Criminal Procedure 1898?
- Section 392, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 353, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 186, Pakistan Penal Code 1860
- Section 412, Pakistan Penal Code 1860
- Section 411, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
1. ' Mrs. QAISER IQBAL. J.----The applicants Muhammad Yousuf son of Ghulam Hussain and Jawad son of Bashir Ahmed have applied for post arrest bail in Crime No, 66 of 2009, under section 392/ 34, P.P.C. Registered at Police Station Kharadar, Saddar Town. Their bail plea was rejected by the learned trial Court. They have resorted to file this. Criminal Bail Application for redress.
2. ' Succinctly the facts leading to the prosecution case are that complainant Amir Ali lodged a report that on 18-1-2009 at 2000 hours while he was returning from Na-Khuda Masjid, G-Alana Road, he stopped his motorcycle for urgent affairs. In the meantime, two boys, who appeared to be Sindhi and Balouchi, on show of force called upon him to leave the vehicle, both culprits went away along with motorcycle towards Agha Khan Jamat Khana. Matter was reported to police consequent thereof the applicants were arrested on 24-1-2009 in F.I.R. No, 73 of 2009, under sections 353, 324, 186 P.P.C. Of Police Station Kharadar.
3. ' During the investigation, robbed motorcycle was recovered from the possession of applicants and they were booked in the commission of crime.
4. ' Learned counsel for the applicants has contended that conversion of section 392 to section 412, P.P.C. Manifestly shows mala fides on the part of police. The alleged robbed motorcycle was secured from possession of the applicants, therefore, at the best on the basis of evidence available on record the offence against the applicants would fall within purview of section 411, P.P.C., which provides the punishment of sentence of three years and brings the case within the ambit of prohibitory clause contained in section 497(1) Cr.P.C. Thus case against the applicants requires further enquiry under subsection (2) of section 497, Cr.P.C.
5. ' Mr. Fazlur Rahman Awan, learned counsel appearing on behalf of the State has fairly conceded to the fact that the case against the applicants at the best would fall under section 411, P.P.C. As the robbed motorcycle was secured from their possession when they were arrested in another crime and has conceded to the grant of bail in favour of the applicants.
6. ' I have considered the arguments of learned counsel for the parties advanced at bar perused the record of the case. The arrest of the applicants by police of Kharadar, in Crime No,73 of 2009 fully justified the contentions raised on behalf of the applicants. The applicants were not put to identification parade through complainant after their arrest to connect them in the commission of crime of robbery nor any incriminating evidence is available to connote that the case against the applicants falls within the ambit of section 412, P.P.C.
7. ' For the foregoing circumstances, I am inclined to grant concession of bail in favour of the applicants. The applicants are directed to be released on bail subject to furnishing solvent surety in the sum of Rs,1,00,000 (Rupees One Lac only) each and PR Bond in the like amount to the satisfaction of the learned trial court.
8. ' Criminal Bail Application No,396 of 2009 stands disposed of in above terms.
Cited by 1 case
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