Muhammad Fiaz vs The State And Another
This matter concerns a post-arrest bail petition filed by the accused, Muhammad Fiaz, who was charged under Sections 395 and 412 of the Pakistan Penal Code 1860 in connection with an armed robbery involving the theft of cattle. The core legal question was whether the petitioner was entitled to bail given the prosecution's allegations of recovery of stolen property and a weapon, versus the defense's claims of a planted recovery and an unexplained delay in the FIR. The Court observed that the prosecution claimed the stolen cattle were recovered on the petitioner's pointation on June 30, 2010; however, judicial records indicated the cattle had already been handed over to the complainant on superdari on June 22, 2010. Additionally, a recovery witness submitted an affidavit denying the recovery process. Holding that the prosecution's case was prima facie doubtful and noting that bail cannot be used as a measure of advance punishment, the Court allowed the petition. The key principle laid down is that where recovery evidence is contradicted by judicial records and witness affidavits, the accused is entitled to bail.
- Does the existence of a prior superdari order for stolen property render a subsequent recovery from an accused doubtful?
- Can bail be refused to an accused as a measure of advance punishment?
- What is the effect of a recovery witness filing an affidavit denying the recovery on the prosecution's case during bail proceedings?
- Section 395, Pakistan Penal Code 1860
- Section 412, Pakistan Penal Code 1860
ORDER
SH. AHMAD FAROOQ, J. --- The instant post-arrest bail petition has been filed on behalf of Muhammad Fiaz, who is behind the bars, in a case arising out of F.I.R. No. 367, dated 5.6.2010, .Registered in Police Station Bhalwal, District Sargodha under Sections 395/412, P.P.C.
2. Briefly, the prosecution story as narrated by the complainant in the F.I.R., is that during the night between 3.6.2010 and 4.6.2010, at about 12.00 (night), when he was sleeping at his "Dera", some unknown persons while armed with deadly weapons came there, tied him with the cot and thereafter robbed away valuable cattle of the wroth of Rs. 12,20,000/-. The complainant alleged that footprints of the culprits lead to the "Dera" of one "Sajid" and thereafter to the dera of the present petitioner and his co-accused/Mumtaz.
3. Learned counsel for the petitioner submitted that there is an unexplained delay of two days in lodging the F.I.R. He contended that the petitioner was arrested in this case on 23.6.2010 and joint recovery of stolen buffaloes was shown to be effected from him on 30.6.2010. He further contended that the stolen cattles were taken into custody by the police prior to the arrest of the petitioner and their recovery was planted on the petitioner to strengthen the prosecution version. He maintained that the PWs have, submitted their affidavits during the proceedings of the bail petition exonerating the petitioner from the commission of the offence.
4. Learned Deputy Prosecutor-General opposed the instant petition on the plea that joint recovery of stolen buffaloes has been effected from the petitioner as well as his co-accused/Muhammad Mumtaz on 30.6.2010 and a .30 bore pistol was also recovered on the pointation of the present petitioner on 5.7.2010.
5. Arguments heard. Record perused.
6. As per prosecution version, the present petitioner was arrested on 30.6.2010 and the stolen buffaloes were recovered on his pointation on the same day, but a copy of order dated 22.6.2010, passed by the learned Magistrate Section 30, Bhalwal, has been placed on record which shows that "Superdari of the said buffaloes, had been allowed in favour of complainant on 22.6.2010.
Furthermore, the recovery witnesses/Liaqat' Khan submitted his affidavit during the bail proceedings before the learned Additional Sessions Judge, Bhalwal, to the effect that neither any recovery was effected from the present petitioner in his presence nor he thumb marked or signed any recovery memo. This, prima facie, makes the case of the petitioner doubtful. The petitioner is behind the bars since 30.6.2010 and his further detention in jail would not serve any purpose or advance the case of the prosecution. A post-arrest bail cannot be refused to an accused as a measure of advance punishment.
7. In view of the above, the petitioner is entitled to be released on bail. Consequently, the instant post-arrest bail petition, filed on behalf of Muhammad Fiaz, is allowed and he is admitted to bail subject to furnishing of bail bond in the sum of Rs. 1,00,000/-, with one surety, in the like amount to the satisfaction of the learned Trial Court.