ASIM alias AHMAD BAKHSH vs THE STATE and others
The petitioner sought post-arrest bail in a case registered under Sections 392 and 411 of the Pakistan Penal Code 1860, following an incident of robbery at his residence. The core legal question was whether the petitioner was entitled to bail given the two-month delay in lodging the F.I.R., the lack of explanation for this delay, and the nature of the alleged offences. The Court held that the delay in lodging the F.I.R. remained unexplained, and the source of the petitioner's identification was not established in the initial report. Furthermore, the Court observed that the investigation was complete, the recovery of stolen articles had already been effected, and the petitioner had no prior convictions. The Court determined that the offence under Section 392, Pakistan Penal Code 1860 required further inquiry, while the offence under Section 411, Pakistan Penal Code 1860 did not fall within the prohibitory clause. Consequently, the Court granted post-arrest bail, emphasizing that in the absence of prior convictions, the petitioner was entitled to the concession of bail.
- Does an unexplained two-month delay in lodging an F.I.R. entitle an accused to the concession of bail?
- Does the offence of dishonestly receiving stolen property under Section 411 of the Pakistan Penal Code 1860 fall within the prohibitory clause?
- Is an accused entitled to bail when the investigation is complete and the required recoveries have already been effected?
- Section 392, Pakistan Penal Code 1860
- Section 411, Pakistan Penal Code 1860
MAZHAR IQBAL SIDHU, J.---Asim alias Ahmad Bakhsh has Sought post-arrest bail in a case registered against him and others through F.I.R. No.427, dated 30-8-2010, under section 392, P.P.C.
At Police Station Saddar, Sadiqabad, District Rahimyar Khan, on the complaint of Muhammad Sarwar, about an .Occurrence which took place in between the night 15/16-6-2010, Later-on, offence under section 411, P.P.C. Was also added to the F.I.R.
2. It is appropriate to mention before mentioning the facts of the case that in this case, petitioner was arrested by police on 3-9-2010 and thereafter recovery of certain articles was made from him on 7-9-2010 and then he was sent to judicial lock-up. His post-arrest bail was granted by learned trial Court vide its order dated 18-10-2010. Thereafter, complainant party went on cancellation of bail of the petitioner, the same was cancelled, by learned Additional Sessions Judge vide order dated 19-1-2011. Hence, instant application.
3. Tersely, the prosecution case as set-up by the complainant in the F.I.R. Is that complainant proceeded to offer Umrah on 3-6-2010. In between the night 15/16-6-2010 at about 1-00 a.m., Rashid Khan Sarwar, his son, was asleep in veranda of the house whereas wife of the complainant, as also sleeping on a cot, placed nearby. Three unknown persons, whose descriptions have been mentioned in the F.I.R., forcibly entered in the house while climbing over the wall, who were having weapons with them, and forcibly removed net cash Rs.50,000, licensed repeater gun, whose number has been mentioned the F.I.R., bicycle and also ornaments of gold weighing 6 tolas. While getting away from the spot, culprits intimidated the son of the petitioner, not to initiate any proceeding against them. It has further been mentioned in the F.I.R. That son of the complainant had intimated the complainant on a cell in Saudi Arabia, then complainant came back on 19-6- 2010. Thereafter, he kept on searching the culprits and then he came to know names of the culprits as Asim son of Luqman petitioner Talit son of Muhammad Hussain and Tariq son of Muhammad Hussain. Thereafter, case was lodged. Hence bail application.
4. In support of this application, it has been argued that there is delay of about two months in lodging the F.I.R., about which no plausible explanation has been given by the prosecution; false recovery of some ornaments of gold has been planted upon the petitioner and petitioner was granted bail. Thereafter, his bail cancelled by the learned Additional Sessions Judge and at this stage, he is not required for any purpose of investigation and prima facie, offence under section 392, P.P.C. Is not made out and at the maximum, offence under section 411, P.P.C. Is made out against the petitioner, the same does not fall within the prohibitory clause.
5. Learned D.P.-G. Assisted by learned counsel for the complainant opposed the bail application on the grounds that petitioner is a mobster and prior to lodgment of instant case, he remained involved in F.I.Rs. No. 509 of 2010, 427 of 2010 and 450 of 2010, lodged at Police Station Sadiqabad, of the like nature in which, petitioner has sought bail. Learned counsel for the complainant has argued that such like incidents are being flourished in the society and if accused are not restrained with iron hands, then peace and tranquility of the society would be at stake and in such like cases, accused are not entitled for the concession of bail.
6. I have heard learned counsel for the parties and have gone through the record.
7. There is delay of about two months in lodging F.I.R., about which no reasonable explanation has been given and the reason given in the F.I.R. About its explanation s preposterous, petitioner in the first round of bail application was granted bail and thereafter, his bail was cancelled. Whatever was required to be recovered from the petitioner, the same has already been recovered. Source through which the complainant came to know about name of the petitioner and his co-accused has not been mentioned in the F.I.R., however after 3rd day of lodgment of F.I.R., statements of four P. Ws. Were recorded by the Investigating Officer, who named the petitioner and his co-accused in their statements. Prima facie, offence under section 392, P.P.C. Needs further inquiry whereas offence under section 411, P.P.C. Does not fall within the prohibitory clause. There is nothing on record to show that the petitioner has been convicted in any case prior to the registration of instant case. Therefore, relying upon the case titled "Noor Muhammad v. The State" (2008 SCM R 1556), instant petition is allowed and petitioner is granted post-arrest bail subject to his furnishing bail bonds in the sum of Rs.2,00,000 with one surety in the like amount to the satisfaction of learned trial Court.