SIRAJ AHMAD vs THE STATE and another
This matter arises from a post-arrest bail petition filed by Siraj Ahmad petitioner in case F.I.R. No. 387 of 2008 registered under Section 365 of the Pakistan Penal Code 1860 at Police Station Qureshi Wala, District Lodhran, relating to the disappearance of the complainant's son. The core legal question concerns whether the petitioner is entitled to post-arrest bail considering the delay in lodging the F.I.R., the non-application of the prohibitory clause, the exoneration of a co-accused, and the progress of the trial where charge has already been framed. The Lahore High Court held that offences falling outside the prohibitory clause of Section 497(1) of the Code of Criminal Procedure 1898 remain non-bailable, meaning bail in such cases is not a matter of right and courts retain discretion. The court dismissed the bail petition, reasoning that the petitioner is specifically named in the F.I.R., supported by incriminating ocular evidence under Section 161 of the Code of Criminal Procedure 1898, some co-accused are absconding, and the trial has progressed to the stage of recording prosecution evidence. The key principle laid down is that offences outside the prohibitory clause of Section 497(1) of the Code of Criminal Procedure 1898 remain non-bailable and bail cannot be claimed as of right, with the court retaining discretion to withhold bail particularly when the trial has commenced and incriminating evidence exists.
- Whether an offence falling outside the prohibitory clause of Section 497(1) of the Code of Criminal Procedure 1898 makes bail a matter of right?
- Can post-arrest bail be refused when the trial has commenced and the charge has been framed?
- Does the exoneration of a co-accused by the complainant automatically render the prosecution story doubtful for granting bail to another accused?
- Section 365, Pakistan Penal Code 1860
- Section 497(1), Code of Criminal Procedure 1898
- Section 161, Code of Criminal Procedure 1898
ORDER
' ARSHAD MAHMOOD, J.---Siraj Ahmad petitioner seeks his bail after arrest in case F.I.R. No,387 of 2008, dated 22-11-2008 registered under section 365, P.P.C. At Police Station Qureshi Wala, District Lodhran.
2. Prosecution story in a narrow compass is that son of the complainant namely Muhammad Altaf accompanied the petitioner and his co-accused to Lahore for labour who did not come back.
Ultimately a criminal case was got registered.
3. Learned counsel for the petitioner submits that there is a delay of 5/6 months in lodging the F.I.R.
Adds that petitioner was arrested in the case on 21-1-2009 and after completion of investigation he has been sent to judicial lock up. He pressed hard that despite physical remand of 14 days nothing useful could be recovered from the petitioner. He also submitted that co-accused of the petitioner namely Gul Muhammad has been exonerated by the complainant which renders the whole prosecution story as doubtful. It was lastly argued that offence against the petitioner does not fall within the prohibitory clause of subsection (1) of section 497, Cr.P.C.
4. Learned DDPP assisted by learned counsel for the complainant has opposed this application by contending that petitioner is named in the F.I.R. And has been implicated by the witnesses of ocular account in their statements under section 161, Cr.P.C. Adds that charge has been framed against the petitioner on 2-3-2009 and the case is now fixed for evidence of the prosecution, therefore, petitioner is not entitled to the concession f bail at this stage.
5. The offences which are not categorized as "bailable offences" continue to remain "non-bailable" even if they stand outside the prohibitory clause of section 497(1), Cr.P.C. With the only concession to the persons accused of such-like offences that the Courts of law are not prohibited from releasing them on bail unlike prohibitory clause but the accused of such-like offences cannot claim bail as of right.
6. In the present case, missing of a young son was reported by the father implicating the petitioner and others, therefore, it does not appeal to reason as to why a father would implicate the petitioner falsely by letting off the real culprits. He is named in the F.I.R. And there is sufficient incrimination evidence against him in the shape of statement of witnesses supporting the complainant. Ajmal and Ayaz co-accused of the petitioner are absconding. Charge against the petitioner has been framed and the case is fixed for recording of prosecution evidence, therefore, he is not entitled to the concession of bail at this stage. Resultantly there is no merit in this petition which is dismissed accordingly.
Cited by 1 case
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