ZOHAIB YAMEEN SHAIKH vs THE STATE
This is a criminal bail application filed by the accused Zohaib Yameen Shaikh seeking post-arrest bail in Crime No. 215 of 2011 registered under sections 392/34 of the Pakistan Penal Code at Police Station Gulistan-e-Jauhar ACLC, Karachi. The core legal question before the Sindh High Court was whether the applicant was entitled to bail where his name was absent from the F.I.R., no identification parade was conducted, no recovery was effected from his personal possession, and the offence did not fall squarely within the prohibitory clause of section 497 of the Code of Criminal Procedure. The Court held that the case called for further inquiry under subsection (2) of section 497 of the Code of Criminal Procedure in view of the lack of identification and recovery, and consequently admitted the applicant to post-arrest bail. The key principle laid down is that where an accused is arrested without recovery or identification and faces a charge carrying a minimum punishment falling outside the prohibitory clause, his case warrants further inquiry for the grant of bail.
- Does the absence of an identification parade and personal recovery entitle an accused to post-arrest bail under section 497(2) of the Code of Criminal Procedure 1898?
- Whether an offence carrying a minimum punishment of three years and maximum of seven years falls within the prohibitory clause for the purpose of bail?
- Section 392, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 497(2), Code of Criminal Procedure 1898
1. ORDER MUHAMMAD TASNIM, J.--- Through instant application the applicant/ accused Zohaib Yameen Shaikh son of Muhammad Yameen Shaikh seeks bail in Crime No. 215 of 2011 for the offence under sections 392/34, P.P.C. Of Police Station Gulistan-e-Jauhar ACLC, Karachi.
2. Initially the applicant/accused approached the learned trial Court for grant of bail, but the same was rejected by order dated 25-4-2011.
3. The prosecution story as per F.I.R. Is that on 31-3-2011 at about 1545 hours when complainant reached at Kamran Chowrangi from Rabia City by driving his car bearing Registration No.ATJ-516, Model 2010, Blue Colour Mehran and when he reached near main road Munawar Chowrangi, Block- 14, Gulistan-e-Jauhar, he was intercepted by two young men on motorcycle duly armed with pistol, complainant was stopped and due to fear, the person who was sitting behind motorcycle snatched the car of the complainant and also snatched two mobile phones of Nokia and NKTEL of China, purse, CNIC card, driving license and cash of Rs.3,000 and other documents. Thereafter, the complainant went to Police Station and lodged the F.I.R.
4. Learned counsel appearing on behalf of the applicant/accused has submitted that the name of applicant/ accused does not appear in the F.I.R, he was not arrested from the place of incident. Per learned counsel, no identification was conducted in this case till the submission of challan. He has further submitted that no recovery whatsoever was effected from the applicant/accused, no weapon was recovered from the applicant/accused. Per learned counsel, it is the case of prosecution that when police caught the car of the complainant on the road being driven by the co-accused Sohail Ahmed the present/accused was allegedly sitting in that car but while preparing memo of arrest and recovery no private person of the vicinity was cited as witness, though the arrest and recovery has been shown in a thickly populated area. Per learned counsel, the present case does not fall within the prohibitory clause and minimum punishment for the offence charged is three years, whereas maximum punishment is seven years. Learned counsel submitted that a Court while deciding bail application, minimum punishment is to be taken note of.
5. Learned counsel in support of his contention has placed reliance on the cases of Muhammad Yousuf v. The State (2010 YLR 2129), Muhammad Shahid v. The State (2010 YLR 901), Allah Wasaya v.
6. The State (2004 PCr.L.J 1659), Niaz Ali alias Babar v. The State (2001 YLR 2832) and Muhammad Yaseen v. The State (1996 PCr.LJ 1711).
7. Conversely, learned A. P. -G.Appearing on behalf of the State has vehemently opposed the grant of bail to the applicant/accused on the ground that the alleged crime is against the society, however, he admits that no identification parade was held before the Judicial Magistrate as required under the law. It is also admitted by the prosecution that the car was apprehended by the police on 1-4- 2011 while being driven by the co-accused Sohail Ahmed. However, as per prosecution case, present applicant/accused was also sitting in that car.
8. I have heard the learned counsel for the parties and have perused the record of this case as well as case-law cited at bar.
9. It is the case of the applicant/ accused that he was arrested near his residence and he was not sitting with the co-accused. Since there was no identification parade and minimum punishment for the offence charged is three years and no recovery was effected from the present applicant/accused but he was alleged to have been travelling with the co-accused Sohail Ahmed in that car and such aspect of the matter requires further inquiry under subsection (2) of section 497, Cr.P.C. Accordingly, I admit the applicant/ accused on bail subject to furnishing solvent surety in the sum of Rs.100,000 (Rupees One Lac only) with P.R. Bond in the like amount to the satisfaction of the trial Court.
10. The observations made herein above are tentative in nature and shall not affect the merits of the case triable by the trial Court.
Cited by 1 case
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