GHULAM QADIR vs STATE and another
The petitioner Ghulam Qadir sought post-arrest bail in FIR No. 431 dated 26.9.2011 registered under Sections 380, 411, 413, 414, 420, 468, and 471 of the Pakistan Penal Code 1860 at Police Station Bhatee Gate Lahore, following the recovery of alleged stolen medicines from his hospital and allegations that he was not a qualified doctor. The core legal question was whether the petitioner made out a case for the grant of post-arrest bail, considering the applicability of the offenses and whether they fell within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898. The Lahore High Court held that since no FIR regarding theft had been registered and no previous criminal record existed, the applicability of certain offenses required trial determination, and most charged offenses did not fall within the prohibitory clause. The court laid down the principle that in cases where offenses do not fall within the prohibitory clause, bail is a rule and refusal is an exception, and further incarceration serves no useful purpose when the accused is no longer required for investigation.
- Whether bail should be granted when offences do not fall within the prohibitory clause of Section 497 of the Code of Criminal Procedure 1898?
- Can an accused be presumed to be a habitual offender of dealing in stolen articles without any previous criminal record?
- Does the absence of a theft FIR affect the applicability of Sections 380 and 411 of the Pakistan Penal Code 1860 at the bail stage?
- Section 380, Pakistan Penal Code 1860
- Section 411, Pakistan Penal Code 1860
- Section 413, Pakistan Penal Code 1860
- Section 414, Pakistan Penal Code 1860
- Section 420, Pakistan Penal Code 1860
- Section 468, Pakistan Penal Code 1860
- Section 471, Pakistan Penal Code 1860
- Section 497, Code of Criminal Procedure 1898
ORDER
The petitioner Ghulam Qadir, seeks post-arrest bail in case FIR No, 431 dated 26.9.2011 registered at Police Station Bhatee Gate Lahore, under Sections 380/411/413/414/420/468/471 PPC.
2. Briefly to the prosecution case mentioned in the FIR is that on 26.9.2011 the Investigating Officer checked the hospital of the present petitioner Ghulam Qadir and found some stolen medicines.
Subsequently it was found that the petitioner was not a qualified doctor.
3. Learned counsel for the petitioner contends that the petitioner remained on physical remand but nothing was recovered during the investigation; that there is no complaint regarding theft of any medicine from any hospital hence offence u/S. 380 PPC is not made out; that there is no evidence on the file which could establish that the petitioner is habitual in dealing stolen articles as previously no criminal case was registered against the petitioner nor the petitioner was earlier convicted in any case, thus no case u/S. 413 PPC is made out; that there is no evidence that the petitioner had assisted any one in concealing stolen articles; that offences u/S. 420 and 471 PPC are bailable; that offence u/S. 468 PPC and other offences do not fall within the prohibitory clause of Section 497 Cr.P.C. whereas offences u/S. 380 and 413 PPC are not made out.
4. On the other hand learned D.P.P. has vehemently opposed the bail by contending that although there is no FIR regarding the theft of any medicine but as the official medicines were recovered from his possession hence he can easily be presumed to be a thief; that the offence u/S. 411 PPC is fully attracted, however, after going through the record learned D.P.P. stated that previously no criminal case was registered against the petitioner.
5. Heard. Record perused.
6. Admittedly no FIR was chalked out regarding any theft by any official of Government hospital. In that eventuality the learned trial Court would determine whether offence u/S. 380 and 411, 413 and 414 PPC are made out or not because previously no criminal case was registered against the petitioner nor there is any evidence that he assisted any one for concealing any stolen articles. As previously no criminal case was registered against him, hence petitioner cannot be presumed as a habitual offender.
7. All the offences except u/S. 413 PPC do not fall within the prohibitory clause of Section 497 PPC and in such like cases bail is a rule and refusal is an exception as laid down in the case of Tariq Bashir v. The State (PLD 1995 SC 34). The exceptional circumstances mentioned in the said case are not available in the present case as there is no previous criminal case against the petitioner. The petitioner is behind the bars and his person is no more required by the police for the purposes of further investigation. His further incarceration in jail would not serve any useful purpose.
8. Consequently, this petition is allowed and the petitioner is admitted to bail subject to his furnishing bail bonds in the sum of Rs. 1,00,000/- (Rupees one lac) with one surety in the like amount to the satisfaction of the learned trial Court.